Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent. (b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share. (c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable. (d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon. (e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares. (f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand. (g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest. (h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. (i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement. (j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Cardiogenesis Corp /CA), Agreement and Plan of Merger (Cryolife Inc), Merger Agreement (Cardiogenesis Corp /CA)
Exchange and Payment. (a) Prior On or prior to the Effective TimeClosing Date, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On , pursuant to an agreement in a form reasonably acceptable to the day of Company entered into prior to the Closing (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the “Paying AgentAgent Agreement”), in trust for the benefit of holders of Shares, cash in an amount of cash sufficient equal to deliver to holders of Shares the Aggregate Merger Consideration in accordance with Section 2.1(a) and the Company shall deposit an amount (for the avoidance of doubt, such amount shall not be reflected as a deduction in calculating Adjusted TBV) equal to which they the aggregate Per Share Merger Consideration attributable to any Company Stock Options that are entitled exercised after the date hereof or any Company Restricted Shares that vest after the date hereof and are not otherwise paid out pursuant to Section 3.1. Any 2.3(a) or Section 2.3(b) above (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a2.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time (and in any event no later than the third within three (3rd3) Business Day Days thereafter), Parent and the Surviving Corporation shall cause the Paying Agent to mail to each person who was, at the Effective Time, a holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right a Certificate entitled to receive the Per Share Merger Consideration with respect thereto pursuant to Section 3.1(a), 2.1(a) (i) a form of letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person Certificate(s) shall pass, only upon proper delivery of the Certificates Certificate(s) (or affidavits of loss in lieu of such Certificates) to the Paying Agent, and which letter shall be in customary form Agent and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of Certificates pursuant to such Certificates or Book-Entry Shares letter of transmittal in exchange for the Per Share Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender to the Paying Agent of a Certificate to the Paying Agentfor cancellation, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may be reasonably require (a “Proper Delivery”)required pursuant to such instructions, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor cash in the amount of the Per Share Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect multiplied by the number of the Shares formerly represented by such Certificate or Book-Entry Share Certificate, and the Certificate so surrendered shall forthwith be canceledcancelled. Any holder of Book-Entry Shares shall not be required to deliver a Certificate or an executed letter of transmittal to the Paying Agent to receive the Per Share Merger Consideration. In lieu thereof, upon receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request), each holder of one or more Book-Entry Shares shall automatically upon the Effective Time be entitled to receive, and the Paying Agent shall promptly after the Effective Time (and in any event within three (3) Business Days thereafter) pay to the holder, the amount of the Per Share Merger Consideration multiplied by the number of Shares formerly represented by such Book-Entry Shares. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Per Share Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Per Share Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Per Share Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the reasonable satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.4, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Per Share Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a), without any interest thereon. From and after the Effective Time, holders of Certificates and Book-Entry Shares shall cease to have any rights as stockholders of the Company, except as provided herein or by applicable Law.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, however, that any investment of such cash shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government and that no such investment or loss thereon shall affect the amounts payable to holders of Certificates or Book-Entry Shares pursuant to this Article II. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demanddemand of Parent, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III II shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Per Share Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Per Share Merger Consideration payable in respect thereof pursuant to Section 2.1(a) of this Agreement.
(j) Any portion Subject to the terms of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Agreement, Parent, upon demandin the exercise of its reasonable discretion, shall have the right to make all determinations, not inconsistent with the terms of this Agreement, governing (i) the validity of any letter of transmittal and compliance by any Company stockholder with the procedures and instructions set forth herein and therein and (ii) the method of payment of the Per Share Merger Consideration.
Appears in 3 contracts
Samples: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.), Merger Agreement (SP Bancorp, Inc.)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company Company) with the Company’s transfer agent to act as agent for the Merger Shareholders in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which the Merger Shareholders shall become entitled pursuant to this Article II. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) (i) with the Paying Agent, cash in trust for the benefit of holders of Shares, immediately available funds in an amount of cash sufficient to deliver make all payments to holders of Shares the Merger Consideration to which they are entitled Shareholders required pursuant to Section 3.1. Any this Article II (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” The Exchange ”), and (ii) in an account designated by Parent not fewer than two Business Days prior to the Effective Time, cash in immediately available funds in an amount equal to the sum of the Option Payments and the Rights Payments to be used by the Surviving Corporation solely to make the payments required by Section 2.2 (such cash being hereinafter referred to as the “Option/Rights Payment Fund”). Neither the Payment Fund nor the Option/Rights Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article II, except as provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other actions contemplated by this Article II.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) second Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a)(i), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a)(i). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Paying Agent may reasonably require (a “Proper Delivery”)Agent, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a)(i) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a)(i), without any interest thereon.
(e) All Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. Pacific time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration delivered (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. Pacific time on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(fg) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash in immediately available funds into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Corporation.
(gh) Any portion of At any time following the Exchange Fund date that is 12 months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it, Parent and/or the Surviving Corporation any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), ) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such Certificate payable upon due surrender of their Certificates or Book-Entry ShareShares. The Surviving Corporation shall pay all charges and expenses, without interest.
(h) None including those of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person Agent, in respect connection with the exchange of cash from Shares for the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawMerger Consideration.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying AgentParent, providing an appropriate affidavit and/or the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion None of Parent, HoldCo, Merger Sub, the Company or the Paying Agent, or any employee, officer, director, agent or Affiliate thereof, shall be liable to any Person in respect of any cash from the Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate has not been surrendered prior to five years after the Effective Time (or immediately prior to such earlier date on which the Merger Consideration made available in respect of such Certificate would otherwise escheat to or become the property of any Governmental Entity), any such cash in respect of such Certificate shall, to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parentextent permitted by applicable Law, upon demandbecome the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
Appears in 3 contracts
Samples: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Ameristar Casinos Inc), Merger Agreement (Pinnacle Entertainment Inc.)
Exchange and Payment. (a) Prior to Immediately after the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub Contango shall deposit (or cause to be deposited) with a bank or trust company designated as exchange agent by Contango and reasonably acceptable to the Paying Partnership (the “Exchange Agent”), in trust for the benefit of holders of Shares, an amount of cash sufficient Partnership Common Units outstanding immediately prior to deliver to the Effective Time (other than holders of Shares units to the Merger Consideration extent such units are to which they are entitled be cancelled) book-entry shares (or certificates if requested) representing shares of Contango Common Stock issuable pursuant to Section 3.12.1(a). Any In addition, Contango shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time, any dividends or distributions payable pursuant to Section 2.3(e) and any cash in lieu of fractional shares of Contango Common Stock payable pursuant to Section 2.3(g), in each case without interest. All certificates representing shares of Contango Common Stock, dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Contango shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding certificate or outstanding certificates certificate(s) (“Certificates”) that represented outstanding Partnership Common Units and to each holder of uncertificated Shares Partnership Common Units represented by book entry (“Book-Entry SharesUnits”) that ), each as of immediately prior to the Effective Time represented outstanding Shares Time, that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a)(i), any dividends or distributions payable pursuant to Section 2.3(e) and any cash in lieu of fractional shares of Contango Common Stock payable pursuant to Section 2.3(g), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent Contango or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates (or affidavits of loss in lieu thereof as provided in Section 2.3(k)) or Book-Entry Shares Units in exchange for the Merger Consideration Consideration, any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a2.3(e) and any cash in lieu of fractional shares of Contango Common Stock payable pursuant to Section 2.3(g). Upon .
(c) As soon as reasonably practicable after the Effective Time and upon surrender of a Certificate (or affidavit of loss in lieu thereof as provided in Section 2.3(k)), to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents (including with respect of Book-Entry Units) as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share Partnership Common Units shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares Partnership Common Units formerly represented by such Certificate or Book-Entry Share Units (subject to any applicable withholding Tax) (A) that number of whole shares of Contango Common Stock (after taking into account all Partnership Common Units then held by such holder under all Certificates and Book-Entry Units so surrendered) to which such holder of Partnership Common Units shall have become entitled pursuant to Section 2.1(a)(i) (which shall be in uncertificated book-entry form unless a physical certificate is requested),(B) any dividends or other distributions payable pursuant to Section 2.3(e) and (C) any cash in lieu of fractional shares of Contango Common Stock payable pursuant to Section 2.3(g), and the Certificate or Book-Entry Units so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions or cash in lieu of fractional shares, if any, payable in respect to holders of Certificates or Book-Entry SharesUnits. Payment of Merger Consideration shall be made Until surrendered as promptly as practicable after the date of Proper Delivery of the applicable contemplated by this Section 2.3, each Certificate or Book-Entry ShareUnit shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof, any dividends or other distributions payable pursuant to Section 2.3(e) and any cash in lieu of fractional shares of Contango Common Stock payable pursuant to Section 2.3(g).
(cd) If payment delivery of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share Unit is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share Unit shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment delivery of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered Unit or shall have established to the satisfaction of Parent Contango that such tax either has been paid or is not applicable.
(de) Until surrendered No dividends or other distributions with respect to Contango Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Partnership Common Units with respect to the shares of Contango Common Stock that the holder thereof has the right to receive in accordance herewith, and no cash payment in lieu of fractional shares of Contango Common Stock shall be paid to any such holder pursuant to Section 2.3(g), in each case until the holder thereof shall surrender such Certificate(s) (or affidavit of loss in lieu thereof as contemplated by this provided in Section 3.3, each Certificate 2.3(k)) or Book-Entry Share Units in accordance with this Article II. Following the surrender of any such Certificates (or affidavit of loss in lieu thereof as provided in Section 2.3(k)) or Book-Entry Units in accordance with this Article II, there shall be deemed at paid to the holder of record thereof, without interest, (A) promptly after such surrender, the amount of any time dividends or other distributions with a record date after the Effective Time theretofore paid with respect to represent only such whole shares of Contango Common Stock and the right to receive the Merger Consideration amount of any cash payable in respect lieu of Shares theretofore represented by a fractional share of Contango Common Stock to which such Certificate or Book-Entry Shares, as applicable, holder is entitled pursuant to Section 3.1(a)2.3(g) and (B) at the appropriate payment date, without any interest thereonthe amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of Contango Common Stock.
(ef) All The Merger Consideration delivered Consideration, any dividends or other distributions payable pursuant to Section 2.3(e) and any cash in lieu of fractional shares of Contango Common Stock payable pursuant to Section 2.3(g) issued and paid upon the surrender for exchange of Certificates or Book-Entry Shares Units in accordance with the terms of this Article III II shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares shares of Partnership Common Units formerly represented by such Certificates or Book-Entry SharesUnits. At the Effective Time, the stock unit transfer books of the Company Partnership shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares Partnership Common Units that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation Contango or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry SharesUnits, such Certificates or Book-Entry Shares Units shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demandII.
(g) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Contango Common Stock shall be issued upon the surrender for exchange of Certificates or Book-Entry Units, no dividends or other distributions with respect to the Contango Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a shareholder of Contango. In lieu of the issuance of any such fractional share, Contango shall pay to each former holder of record of Partnership Common Units who otherwise would be entitled to receive a fractional share of Contango Common Stock an amount in cash (without interest) determined by multiplying (i) the fraction of a share of Contango Common Stock that such holder would otherwise be entitled to receive (taking into account all Partnership Common Units held by such holder at the Effective Time and rounded to the nearest thousandth when expressed in decimal form) pursuant to Section 2.1(a)(i) by (ii) the volume weighted average closing price of one share of Contango Common Stock on the NYSE American Stock Exchange (the “NYSE American”) and the other United States exchanges, if any, on which it trades for the five trading days ending at 4:00 p.m., Eastern Time, on the last trading day immediately prior to the date on which the Effective Time shall occur, as such price is reported under the heading “U.S. Equities” by Bloomberg Financial Markets or such other source as Contango and the Partnership shall agree in writing.
(h) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year Units 12 months after the Effective Time shall be delivered to ParentContango, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III Units shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws)Contango, as general creditors thereof, for payment of the Merger Consideration with respect Consideration, any unpaid dividends or other distributions payable pursuant to Shares formerly represented by such Certificate Section 2.3(e) and any cash in lieu of fractional shares of Contango Common Stock payable pursuant to Section 2.3(g) (subject to abandoned property, escheat or Book-Entry Shareother similar laws), without interest.
(hi) None of ParentContango, Surviving Entity, the Surviving Corporation, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of Merger Consideration, dividends or other distributions with respect thereto or cash from the Exchange Fund in lieu of fractional shares of Contango Common Stock properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Units shall not have been exchanged prior to two years after the Effective Time (or immediately prior to such earlier date on which the related Merger Consideration (and all dividends or other distributions with respect to shares of Contango Common Stock and any cash in lieu of fractional shares of Contango Common Stock pursuant to this Article II), would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration (and such dividends, distributions and cash), in respect thereof shall, to the extent permitted by applicable Law, become the property of Surviving Entity, free and clear of all claims or interest of any Person previously entitled thereto.
(ij) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Contango on a daily basis. Any interest and other income resulting from such investments shall be paid to Contango.
(k) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent)Contango, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent Contango or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent Contango or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation Entity with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent thereof, any dividends or other distributions payable pursuant to Section 3.3(a2.3(e) and any cash in lieu of fractional shares of Contango Common Stock payable pursuant to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand2.3(g).
Appears in 3 contracts
Samples: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Mid-Con Energy Partners, LP)
Exchange and Payment. (a) Prior to Promptly after the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of SharesEligible Shares immediately prior to the Effective Time, an amount for exchange in accordance with this Article II through the Exchange Agent, shares of cash Parent Common Stock sufficient in order for the Exchange Agent to deliver distribute the aggregate Merger Consideration. From time to holders of Shares time as needed as reasonably determined by Parent, Parent shall deposit with the Merger Consideration to which they are entitled Exchange Agent any dividends or distributions payable pursuant to Section 3.12.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(g). Any cash All such cash, dividends, distributions and shares of Parent Common Stock deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” ”. The Exchange Agent will, pursuant to irrevocable instructions reasonably acceptable to the Company, deliver the Merger Consideration contemplated to be paid for the Eligible Shares pursuant to this Agreement out of the Exchange Fund. Except as contemplated by Sections 2.3(d) and 2.3(g), the Exchange Fund shall will not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agentpurpose.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Company shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Eligible Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration Consideration, any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a2.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(g). Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Eligible Shares formerly represented by such Certificate that number of whole shares of Parent Common Stock (after taking into account all Eligible Shares then held by such holder under all Certificates so surrendered) to which such holder of Eligible Shares shall have become entitled pursuant to Section 2.1(a) (which shares of Parent Common Stock shall be in uncertificated book-entry form unless a physical certificate is requested), any dividends or Book-Entry Share other distributions payable pursuant to Section 2.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(g), and the Certificate so surrendered shall forthwith be canceledcancelled. Promptly after the Effective Time and in any event not later than the third Business Day thereafter, the Surviving Company shall cause the Exchange Agent to issue and send to each holder of uncertificated Eligible Shares represented by book entry (“Book-Entry Shares”)
(i) a notice advising such holders of the effectiveness of the Mergers, (ii) a statement reflecting the number of shares of Parent Common Stock (which shall be in uncertificated book-entry form) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.1(a)(i) (after taking into account all Eligible Shares then held by such holder) and (iii) a check or wire transfer in the amount equal to any dividends or distributions payable pursuant to Section 2.3(d) and cash payable in lieu of any fractional shares of Parent Common Stock pursuant to Section 2.3(g)), without such holder being required to deliver a Certificate or an executed letter of transmittal to the Exchange Agent, and such Book-Entry Shares shall then be cancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions or cash in lieu of fractional shares, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made Until surrendered as promptly as practicable after the date of Proper Delivery of the applicable contemplated by this Section 2.3, each Certificate or Book-Entry ShareShare shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof, any dividends or other distributions payable pursuant to Section 2.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(g).
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(ei) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest No dividends or other income resulting from such investments shall be paid distributions with respect to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year Parent Common Stock with a record date after the Effective Time shall be delivered paid to Parent, the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock that the holder thereof has the right to receive upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied the surrender thereof until the holder thereof shall surrender such Certificate in accordance with this Article III II. Following the surrender of a Certificate by a record holder of Eligible Shares in accordance with this Article II, there shall thereafter look only be paid to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Shareholder, without interest.
, (h1) None of Parentpromptly after such surrender, the Surviving Corporation, amount of any dividends or other distributions with a record date after the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation Effective Time theretofore paid with respect to such Certificatewhole shares of Parent Common Stock and (2) at the appropriate payment date, the Paying Agent will deliver in exchange for amount of dividends or other distributions with a record date after the Effective Time but prior to such lost, stolen or destroyed Certificate the Merger Consideration surrender and a payment date subsequent to such surrender payable in with respect thereof pursuant to this Agreementsuch whole shares of Parent Common Stock.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 3 contracts
Samples: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Pioneer Energy Services Corp), Merger Agreement (Patterson Uti Energy Inc)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement (in a form reasonably acceptable to the Company) with a such bank or trust company designated by Parent and reasonably acceptable to the Company to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article III. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any this Article III (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article III, except as provided in this Agreement. Parent or the Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other amounts contemplated by this Article III.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) fifth Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be ) in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Shares formerly represented by such Certificate (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share, and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the fifth Business Day following the Effective Time, Parent and the Surviving Corporation shall cause the Paying Agent to issue and send to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares and Dissenting Shares, a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share and shall be properly transferred transferred, and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable. Any other transfer or similar Taxes incurred in connection with the Merger will be paid by Parent.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicablethereof, pursuant to Section 3.1(a)this Article III, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 3.4), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid to the property of, and shall be payable to, Parent, upon demand.
(g) Any portion of At any time following the Exchange Fund (and any interest or other income earned thereon) date that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year is 12 months after the Effective Time Time, Parent shall be delivered entitled to Parent, upon demandrequire the Paying Agent to deliver to it or its designee any funds (including any interest received with respect thereto) which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates, and any thereafter such holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter be entitled to look only to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration payable upon due surrender of their Certificate. Parent shall, or shall cause the Surviving Corporation to, pay all charges and expenses, including those of the Paying Agent, in connection with respect to the exchange of Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) for the Merger Consideration. None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by the Company’s stockholders at such date as is immediately prior to the time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall, to the extent permitted by applicable Laws, become the property of the Surviving Corporation, free and clear of any claims or interests of any such stockholders or their successors, assigns or personal representatives previously entitled thereto.
(ih) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance including, if reasonably acceptable to Parent), of that fact required by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying AgentSurviving Corporation, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(ji) Any portion The stock transfer books of the Company shall be closed immediately upon the Effective Time, and there shall be no further registration of transfers of Shares thereafter on the records of the Company. At or after the Effective Time, the Certificates or Book-Entry Shares shall, subject to compliance with the provisions of this Article III by the holder thereof and subject to Section 3.4, represent only the right to receive the Merger Consideration made available with respect to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demandformerly represented thereby.
Appears in 2 contracts
Samples: Merger Agreement (Omron Corp /Fi), Merger Agreement (Adept Technology Inc)
Exchange and Payment. (a) Prior to Promptly after the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with a bank or trust company designated by Parent (the Paying “Exchange Agent”), in trust for the benefit of holders of shares of Company Common Stock immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares), an amount book-entry shares representing the shares of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled Parent Common Stock issuable pursuant to Section 3.13.1(a). Any In addition, Parent shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time, any dividends or distributions payable pursuant to Section 3.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.3(f). All certificates representing shares of Parent Common Stock, dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, the Surviving Corporation Parent shall cause the Paying Exchange Agent to mail furnish to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares shares of Company Common Stock that were converted into the right to receive the Merger Consideration with respect thereto Consideration, any dividends or distributions payable pursuant to Section 3.1(a3.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.3(f), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration Consideration, any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a3.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.3(f). Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration shares of Company Common Stock formerly represented by such Certificate (other than Excluded Shares) (A) that number of whole shares of Parent Common Stock (after taking into account all shares of Company Common Stock then held by such holder is under all Certificates so surrendered) to which such holder of Company Common Stock shall have become entitled to receive pursuant to Section 3.1(a) (which shall be in respect uncertificated book-entry form), (B) any dividends or other distributions payable pursuant to Section 3.3(d) and (C) any cash in lieu of the Shares represented by such Certificate or Book-Entry Share fractional shares of Parent Common Stock payable pursuant to Section 3.3(f), and the Certificate so surrendered shall forthwith be canceledcancelled. Promptly after the Effective Time and in any event not later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Exchange Agent to issue and send to each holder of uncertificated shares of Company Common Stock represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares, (1) that number of whole shares of Parent Common Stock to which such holder of Book-Entry Shares shall have become entitled pursuant to the provisions of Section 3.1(a) (which shall be in book-entry form unless a physical certificate is requested), (2) any dividends or other distributions payable pursuant to Section 3.3(d) and (3) any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.3(f), subject to receipt of an agent’s message or such other confirmation as may be reasonably required, and such Book-Entry Shares shall then be cancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions or cash in lieu of fractional shares, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made Until surrendered as promptly as practicable after the date of Proper Delivery of the applicable contemplated by this Section 3.3, each Certificate or Book-Entry ShareShare shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof, any dividends or other distributions payable pursuant to Section 3.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.3(f).
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(ei) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest No dividends or other income resulting from such investments shall be paid distributions with respect to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year Parent Common Stock with a record date after the Effective Time shall be delivered paid to Parent, the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock that the holder thereof has the right to receive upon demandthe surrender thereof, and no cash payment in lieu of fractional shares of Parent Common Stock shall be paid to any holders of Certificates or Book-Entry Shares who have not theretofore complied such holder pursuant to Section 3.3(f), in each case until the holder thereof shall surrender such Certificate in accordance with this Article III III. Following the surrender of a Certificate in accordance with this Article III, there shall thereafter look only be paid to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors record holder thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
, (hA) None of Parentpromptly after such surrender, the Surviving Corporation, amount of any dividends or other distributions with a record date after the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation Effective Time theretofore paid with respect to such Certificate, whole shares of Parent Common Stock and the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration amount of any cash payable in respect thereof pursuant lieu of a fractional share of Parent Common Stock to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent which such holder is entitled pursuant to Section 3.3(a3.3(f) and (B) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned such surrender and a payment date subsequent to Parent, upon demandsuch surrender payable with respect to such whole shares of Parent Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (Neos Therapeutics, Inc.), Merger Agreement (Aytu Bioscience, Inc)
Exchange and Payment. (a) Prior At or prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with a bank or trust company designated by Parent (the “Paying Agent”), in trust for the benefit of holders of Shares, Shares in accordance with Section 2.1(a) cash in an amount of cash sufficient equal to deliver to holders of Shares the Aggregate Merger Consideration to which they are entitled pursuant to Section 3.1. Any (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a2.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Per Share Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Per Share Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other customary documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Per Share Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of on the Per Share Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Per Share Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Per Share Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.4, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Per Share Merger Consideration payable with respect thereto pursuant to Section 2.1(a) in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a)Certificate, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry SharesCertificates. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Sharestransfer, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, however, that any investment of such cash shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government, in commercial paper rated A 1 or P 1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank that are then publicly available). Any interest or other income resulting from such investments shall be paid to Parent, upon demand. Any loss resulting from such investments or other shortfall in the Payment Fund shall not relieve Parent of its obligation to pay the Aggregate Merger Consideration pursuant to Article II and Parent shall promptly deposit additional cash with the Paying Agent upon receipt of notice from the Company or the Paying Agent of any such losses or other shortfall in the Payment Fund.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year six months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demanddemand of Parent, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III II shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Per Share Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry ShareCertificate, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, an agreement to indemnify Parent and the Paying Agent or the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Per Share Merger Consideration payable in respect thereof pursuant to Section 2.1(a) of this Agreement.
(j) Any portion of the Merger Consideration Payment Fund made available to the Paying Agent pursuant to Section 3.3(a2.4(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 2.6 shall be returned to Parent, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.)
Exchange and Payment. (a) Prior to Promptly after the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On , in trust for the day benefit of (and holders of Shares immediately following) prior to the Effective TimeTime (other than holders to the extent they hold Dissenting Shares or Excluded Shares), cash in an amount sufficient to pay the aggregate Merger Consideration in accordance with Section 2.1(a) (such cash, the “Payment Fund”). From time to time following the Effective Time as required, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent additional cash in trust for the benefit of holders of Shares, an any amount of cash sufficient necessary to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with enable the Paying Agent to pay any and all Merger Consideration payable hereunder, to the extent the Payment Fund shall hereinafter be referred become insufficient to make such payments. Except as otherwise provided in this Agreement, the “Exchange Fund.” The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle II.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Shares formerly represented by such Certificate (other than Dissenting Shares and Excluded Shares) the Merger Consideration for each Share formerly represented by such Certificate (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the third Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to issue and send to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), other than with respect to Dissenting Shares and Excluded Shares, a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, thereof pursuant to Section 3.1(a)this Article II, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, however, that any investment of such cash shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government, in commercial paper rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank that are then publicly available). Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year six months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III (except to the extent representing Dissenting Shares or Excluded Shares) shall thereafter look only to the Surviving Corporation as general creditors thereof for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been exchanged prior to the date on which the related Merger Consideration would otherwise escheat to or become the property of any Governmental Entity, any such Merger Consideration in respect thereof shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a2.1(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 2.5 shall be returned to Parent, upon demand; provided, that the parties acknowledge that, notwithstanding anything to the contrary in this Agreement, Parent shall not be required under this Section 2.3 or otherwise to deposit with the Paying Agent any cash to pay Merger Consideration with respect to Shares as to which its holder has purported to deliver a notice or demand of appraisal that has not been withdrawn prior to the Closing Date; provided, further, that this Section 2.3(j) shall not relieve Parent of any obligation to pay the Merger Consideration for any Shares whose holder has failed to perfect or withdraws or loses such right to appraisal, or to pay for the appraised value for any Shares in accordance with Section 262 of the DGCL.
Appears in 2 contracts
Samples: Merger Agreement (Aruba Networks, Inc.), Merger Agreement (Hewlett Packard Co)
Exchange and Payment. (a) Prior to At the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub Surviving Corporation shall deposit (or cause to be deposited) with a bank or trust company designated by the Paying Surviving Corporation (the “Exchange Agent”), in trust for the benefit of holders of shares of Xxxxxx Common Stock immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares), an amount book-entry shares (or certificates if requested) representing the shares of Surviving Corporation Common Stock issuable pursuant to Section 2.1(b) and cash sufficient to deliver to holders make payments in lieu of Shares the Merger Consideration to which they are entitled fractional shares of Surviving Corporation Common Stock payable pursuant to Section 3.12.3(f). Any In addition, the Surviving Corporation shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time, any dividends or distributions payable pursuant to Section 2.3(d). All certificates representing shares of Surviving Corporation Common Stock, dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares shares of Xxxxxx Common Stock that were converted into the right to receive the Merger Consideration with respect thereto Consideration, any dividends or distributions payable pursuant to Section 3.1(a2.3(d) and any cash in lieu of fractional shares of Surviving Corporation Common Stock payable pursuant to Section 2.3(f), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent the Surviving Corporation or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration Consideration, any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a2.3(d) and any cash in lieu of fractional shares of Surviving Corporation Common Stock payable pursuant to Section 2.3(f). Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect shares of the Shares Xxxxxx Common Stock formerly represented by such Certificate (other than Excluded Shares) (A) that number of whole shares of Surviving Corporation Common Stock (after taking into account all shares of Xxxxxx Common Stock then held by such holder under all Certificates so surrendered) to which such holder of Xxxxxx Common Stock shall have become entitled pursuant to Section 2.1(b) (which shall be in uncertificated book-entry form unless a physical certificate is requested), (B) any dividends or Book-Entry Share other distributions payable pursuant to Section 2.3(d) and (C) any cash in lieu of fractional shares of Surviving Corporation Common Stock payable pursuant to Section 2.3(f), and the Certificate so surrendered shall forthwith be canceledcancelled. Promptly after the Effective Time and in any event not later than the third Business Day thereafter, the Surviving Corporation shall cause the Exchange Agent to issue and send to each holder of uncertificated shares of Xxxxxx Common Stock represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares, (1) that number of whole shares of Surviving Corporation Common Stock to which such holder of Book-Entry Shares shall have become entitled pursuant to the provisions of Section 2.1(b) (which shall be in book-entry form unless a physical certificate is requested), (2) any dividends or other distributions payable pursuant to Section 2.3(d) and (3) any cash in lieu of fractional shares of Surviving Corporation Common Stock payable pursuant to Section 2.3(f), without such holder being required to deliver a Certificate or an executed letter of transmittal to the Exchange Agent, and such Book-Entry Shares shall then be cancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions or cash in lieu of fractional shares, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made Until surrendered as promptly as practicable after the date of Proper Delivery of the applicable contemplated by this Section 2.3, each Certificate or Book-Entry ShareShare shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof, any dividends or other distributions payable pursuant to Section 2.3(d) and any cash in lieu of fractional shares of Surviving Corporation Common Stock payable pursuant to Section 2.3(f).
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent the Surviving Corporation that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate (i) No dividends or Book-Entry Share shall be deemed at any time after the Effective Time other distributions with respect to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on Common Stock with a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year record date after the Effective Time shall be delivered paid to Parent, the holder of any unsurrendered Certificate with respect to the shares of Surviving Corporation Common Stock that the holder thereof has the right to receive upon demandthe surrender thereof, and no cash payment in lieu of fractional shares of Surviving Corporation Common Stock shall be paid to any holders of Certificates or Book-Entry Shares who have not theretofore complied such holder pursuant to Section 2.3(f), in each case until the holder thereof shall surrender such Certificate in accordance with this Article III II. Following the surrender of a Certificate in accordance with this Article II, there shall thereafter look only be paid to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors record holder thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
, (hA) None of Parentpromptly after such surrender, the Surviving Corporation, amount of any dividends or other distributions with a record date after the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation Effective Time theretofore paid with respect to such Certificate, whole shares of Surviving Corporation Common Stock and the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration amount of any cash payable in respect thereof pursuant lieu of a fractional share of Surviving Corporation Common Stock to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent which such holder is entitled pursuant to Section 3.3(a2.3(f) and (B) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned such surrender and a payment date subsequent to Parent, upon demandsuch surrender payable with respect to such whole shares of Surviving Corporation Common Stock.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ryland Group Inc), Merger Agreement (Standard Pacific Corp /De/)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company) with the Company’s transfer agent to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article II. On the day of (and At or immediately following) after the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver pay the aggregate Merger Consideration payable in the Merger to all holders of Shares immediately prior to the Merger Consideration Effective Time (other than with respect to which they are entitled pursuant Excluded Shares) (such cash provided to Section 3.1the Paying Agent the “Payment Fund”). Any cash deposited with Parent shall cause the Paying Agent to make, and the Paying Agent shall hereinafter be referred to as make, delivery of the “Exchange Fund.” Merger Consideration out of the Payment Fund in accordance with this Agreement. The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article II, except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable Promptly after the Effective Time and in any event not later than the third Business Day following the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Parent shall cause the Paying Agent to mail to each holder of record of an outstanding certificate one or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) more Certificates that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof and, if required by Parent or the Paying Agent, an indemnity bond) to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a). Upon surrender of a Certificate (or an affidavit of loss in lieu thereof and, if required by Parent or the Paying Agent, an indemnity bond) to the Paying Agent, together with such letter of transmittal (ortransmittal, and such other documents as the Paying Agent may reasonably require, in the each case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Shares formerly represented by such Certificate (other than Excluded Shares) the Merger Consideration for each such Share (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the second Business Day thereafter, Parent shall cause the Paying Agent to issue and deliver to each holder of Book-Entry Shares the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) 2.1 in respect of the Shares represented by such Certificate or Book-Entry Share Shares without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, thereof pursuant to Section 3.1(a), this Article II without any interest thereon.
(e) All Merger Consideration delivered The cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, (i) all holders of Certificates or Book-Entry Shares shall cease to have any rights as stockholders of the Company other than the right to receive the Merger Consideration into which the Shares represented by such Certificates or Book-Entry Shares have been converted pursuant to this Agreement upon the surrender of such Certificate or Book-Entry Share in accordance with Section 2.3(b), without interest and (ii) the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation Parent or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(f) The Paying Agent shall may invest any cash included in the Exchange Payment Fund as directed by ParentXxxxxx. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), on a daily basisParent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid inure to the benefit of Parent, upon demand.
(g) Any portion of At any time following the Exchange Fund date that is 12 months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation Company (subject to abandoned property, escheat or other similar Laws), ) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such payable (without interest) upon due surrender of their Certificate or Book-Entry Share, without interestShares.
(h) None of Parent, the Company, the Surviving CorporationCompany, Merger Sub, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it Parent or the Surviving Corporation Company with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Bluegreen Vacations Holding Corp), Merger Agreement (Hilton Grand Vacations Inc.)
Exchange and Payment. (a) Prior On or prior to the Effective Time, (i) Parent and Merger Sub shall enter into an agreement will, or will cause to be deposited, with a paying agent, bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares and Company Warrants immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares), cash in an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled be paid pursuant to Section 3.1. Any cash 2.01 and the aggregate Warrant Consideration to be paid pursuant to Section 2.02 (which, for the avoidance of doubt, in each case shall not include the Option Consideration or the RSU Consideration) and (ii) Parent will, or will cause to be deposited with the Paying Agent shall hereinafter Surviving Corporation, cash in an amount sufficient to pay the aggregate Option Consideration, if any, and the aggregate RSU Consideration to be referred to as paid in accordance with Section 2.03 (such cash in clauses (i) and (ii), in the aggregate, the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle II.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each Person who was the record holder of record of an outstanding a certificate or outstanding certificates (each, a “Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry SharesCertificate”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant and to Section 3.1(a), each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”): (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person and Book-Entry Shares shall pass, only upon proper delivery of the Certificates or Book-Entry Shares, as applicable, to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent Parent, the Company or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender to the Paying Agent of a Certificate to the Paying Agent(or affidavit of loss in lieu thereof) or Book-Entry Shares, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Paying Agent may reasonably require (a “Proper Delivery”)Agent, the holder of such Certificate or Book-Entry Share Shares shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of for the Shares formerly represented by such Certificate or Book-Entry Shares (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share (subject to deduction for any required withholding Taxes), and the Certificate or Book-Entry Shares so surrendered shall forthwith immediately be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by in accordance with the provisions of this Section 3.32.04, each Certificate or Book-Entry Share (other than Certificates and Book-Entry Shares representing any Excluded Shares or Dissenting Shares) shall be deemed at any time after the Effective Time to represent only solely the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, thereof pursuant to Section 3.1(a)this Article II, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included remaining in the Exchange Payment Fund as directed by Parent, on a daily basis. Any interest , provided, that (i) no such investment or other income resulting from losses thereon shall affect the Merger Consideration payable to the holders of Shares and the Warrant Consideration payable to holders of Company Warrants, (ii) following any such losses or events that result in the Payment Fund becoming not immediately available or that result in the amount of funds in the Payment Fund being insufficient to promptly pay the portion of the aggregate Merger Consideration and the portion of the aggregate Warrant Consideration that remains unpaid, Parent shall promptly provide additional funds to the Paying Agent for the benefit of the holders of Shares and Company Warrants to the extent of such insufficiency and (iii) such investments shall be paid to Parentin obligations of or guaranteed by the United States of America or in commercial paper obligations rated P-1 or A-1 or better by Xxxxx’x Investor Services, upon demandInc. or Standard & Poor’s Corporation, respectively.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Certificates, Book-Entry Shares or Company Warrants one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any remaining holders of Certificates or Certificates, Book-Entry Shares who have not theretofore complied with this Article III or Company Warrants (except to the extent representing Excluded Shares or Dissenting Shares) shall thereafter look only to Parent as general creditors thereof for payment of the Surviving Corporation Merger Consideration and Warrant Consideration (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, Purchaser, the Surviving Corporation, Corporation or the Paying Agent or any other Person shall be liable to any Person holder of Shares or Company Warrants for any amounts (whether in respect of cash such Shares or Company Warrants or otherwise) delivered from the Exchange Payment Fund properly delivered or otherwise to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been exchanged prior to two (2) years after the Effective Time (or immediately prior to such earlier date on which the related Merger Consideration or Warrant Consideration would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration or Warrant Consideration in respect thereof shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as or, if required by Parent or the Paying Agent, agreeing to provide indemnity against any claim that may be made against it the Paying Agent or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver to such Person in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration Payment Fund made available to the Paying Agent pursuant to Section 3.3(a2.01(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 2.07 shall be returned to Parent, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Roche Holding LTD), Merger Agreement (Ignyta, Inc.)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (i) select a bank or trust company designated by Parent and reasonably acceptable to the Company to act as the paying agent in the Merger (the “Paying Agent”)) and (ii) enter into a paying agent agreement with the Paying Agent, the terms and conditions of which are satisfactory to the Company in its reasonable discretion. On the day of (and immediately following) At the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares, cash in an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited in accordance with the Paying Agent shall hereinafter be referred to as this Article II (such cash, the “Exchange Payment Fund.” The Exchange ”). Except as otherwise provided in this Agreement, the Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle II.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (the “Certificates”) and to and, if required, each holder of uncertificated uncertified Shares represented by book entry (the “Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, or in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate or Book-Entry Share to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share (subject to deduction for any required withholding Tax), and the Certificate or Book-Entry Share so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, thereof pursuant to Section 3.1(a), without any interest thereonthis Agreement.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that no such investment or losses thereon shall affect the Merger Consideration payable to any Person under this Agreement and Parent shall promptly provide, or shall cause the Surviving Corporation to promptly provide, additional funds to the Paying Agent for the benefit of such Persons to the extent necessary to satisfy the obligations of Parent and the Surviving Corporation under this Section 2.3(f). Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year six months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation as general creditors thereof for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been exchanged prior to the date on which the related Merger Consideration would otherwise escheat to or become the property of any Governmental Entity, any such Merger Consideration in respect thereof shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable appoint Colonial Stock Transfer Company, Inc. to the Company act as exchange agent (the “Paying Exchange Agent”). On ) for the day payment of the Closing Stock Issuance.
(and immediately followingb) At or prior to the Effective Time, Parent or Merger Sub shall deposit (deposit, or cause to be deposited) , with the Paying Exchange Agent, in trust for the benefit evidence of holders shares of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled Parent Class A Common Stock and Parent Class B Common Stock issuable pursuant to Section 3.1. Any cash deposited with 3.1 in book-entry form equal to the Paying aggregate Closing Stock Issuance.
(c) Prior to the Effective Time, Parent shall send, or cause the Exchange Agent shall hereinafter to send, to each record holder of shares of Pubco Common Stock at the Effective Time, whose shares of Pubco Common Stock are to be referred converted into the right to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due receive shares of Parent Class A Common Stock pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal and instructions (which shall specify that the delivery thereof shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates applicable stock certificates or transfer of the applicable book-entry shares to the Paying Exchange Agent, and which letter shall of transmittal will be in customary form and contain have such other provisions as Parent or the Paying Agent may reasonably specify, and shall otherwise be in form and substance reasonably satisfactory to CBA) and (ii) instructions for use in effecting such exchange. Each holder of shares of Pubco Common Stock that have been converted into the surrender right to receive shares of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto Parent Class A Common Stock pursuant to Section 3.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share ) shall be entitled to receive in exchange therefor the Merger Consideration that shares of Parent Class A Common Stock into which such holder is entitled to receive shares of Pubco Common Stock have been converted pursuant to Section 3.1(a) in book-entry form, without physical certificates, in respect of the Shares represented Pubco Common Stock upon: (i) surrender to the Exchange Agent of a Pubco stock certificate; or (ii) receipt of an “agent’s message” by the Exchange Agent (or such Certificate or Bookother evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of book-Entry Share entry shares of Pubco Common Stock; in each case, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Certificate so surrendered shall forthwith be canceledExchange Agent. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If Upon payment of the Merger Consideration is Parent Class A Common Stock pursuant to be made to a Person other than the Person in whose name the surrendered Certificate provisions of this ARTICLE III, each certificate or Bookbook-Entry Share is registered, it shall be a condition of payment that such Certificate entry share so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Sharestransferred, as applicablethe case may be, pursuant to Section 3.1(a), without any interest thereon.
(e) shall immediately be cancelled. All Merger Consideration delivered consideration paid upon the surrender for exchange of Certificates certificates or Booktransfer of book-Entry Shares entry shares in accordance with the terms of this Article III hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Pubco Common Stock formerly represented by such Certificates certificates or Bookbook-Entry Sharesentry shares.
(d) If any certificate representing Pubco Common Stock 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 Parent, the posting by such Person of a bond, in such reasonable amount as Parent 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 consideration to be paid in respect of the shares of Pubco Common Stock formerly represented by such certificate, as contemplated under this ARTICLE III.
(e) Any shares of Parent Class A Common Stock that remain unclaimed by a Pubco Stockholder six (6) months after the Effective Time shall be returned to Parent, and any such Pubco Stockholder shall thereafter look only to Parent (subject to abandoned property, escheat, or other similar Laws), as general creditors thereof, for payment of the Parent Class A Common Stock without any interest. Any shares of Parent Class A Common Stock remaining unclaimed by Pubco Stockholders five (5) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) At the Effective Time, the stock transfer books of the Company Pubco shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation shares of the Shares Pubco Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates certificates of Pubco Common Stock are presented to the Surviving Corporation or the Paying Agent Parent for transfer or transfer is sought for Book-Entry Sharestransfer, such Certificates or Book-Entry Shares certificates shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demandcancelled.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after At the Effective Time and without any action on the part of CBA Member, all of the membership interest in and to CBA shall be delivered to Parent, upon demanddeemed cancelled in CBA’s books and records, and any holders of Certificates or BookParent shall cause the Exchange Agent to, within three (3) Business Days following Closing, issue to CBA Member the CBA Closing Stock Consideration, in book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Shareentry form, without interestphysical certificates.
(h) Fractional shares otherwise issuable upon consummation of the Merger shall be rounded up to the nearest whole share.
(i) None of ParentPubco, the Surviving Corporation, the Paying Agent or any other Person Parent nor CBA shall be liable to any Person in respect of cash from the Exchange Fund shares of Pubco Common Stock, dividends or other distributions with respect thereto properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Enterprise Diversified, Inc.), Merger Agreement (Enterprise Diversified, Inc.)
Exchange and Payment. (a) Prior to the Effective Time, Parent shall appoint (i) an exchange agent to be mutually agreed by the Parties (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration certificates representing shares of Company Common Stock, other than 102 Company Shares (the “Certificates”); provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock; and Merger Sub (ii) to the extent required pursuant to the provisions of the Withholding Tax Ruling, an Israeli withholding agent mutually agreed by the parties hereto, to act as Parent’s withholding agent for Israeli tax withholding purposes and to assist in obtaining any requisite residency certificate and/or other declaration for Israeli Tax withholding purposes and/or a Valid Withholding Certificate, as applicable (the “Withholding Agent”), and in connection therewith shall enter into an agreement with the Withholding Agent in a bank or trust company designated by Parent and form reasonably acceptable satisfactory to the Company (the “Paying Agent”)parties hereto. On the day of (and immediately following) At the Effective Time, Parent shall deposit, or shall cause to be deposited, with (i) the Exchange Agent the aggregate Merger Sub Consideration other than the applicable portion thereof payable to holders of 102 Company Securities and 3(i) Company Options (the “Payment Fund”) and (ii) the 102 Trustee the applicable portion of the aggregate Merger Consideration payable to holders of 102 Company Securities and 3(i) Company Options hereunder.
(b) To the extent the Payment Fund diminishes for any reason below the level required to make prompt payment of the aggregate Merger Consideration, Parent shall deposit (promptly replace or restore, or cause to be depositedreplaced or restored, the lost portion of such fund so as to ensure that it is maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) with no such investment or losses thereon shall relieve Parent from making the Paying Agentpayments required by this Article 2 or affect the amount of Merger Consideration payable hereunder, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) the Payment Fund shall not be invested in any instruments other than direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the government of the United States of America, in trust for commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Financial Services LLC, respectively, in certificates of deposit, bank repurchase agreements or bankers’ acceptances of commercial banks with capital exceeding $10 billion (based on the benefit most recent financial statements of holders such bank that are then publicly available), or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Section 3.1investment. Any cash deposited and all interest or other amounts earned with respect to such funds shall become part of the Paying Agent shall hereinafter be referred to as the “Exchange Payment Fund.” . The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreementpurpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all fees charges and expenses expenses, including those of the Paying Exchange Agent and the Withholding Agent, in connection with the exchange of shares of Company Common Stock and the payment of the Merger Consideration in respect of such shares of Company Common Stock.
(bc) As soon as reasonably practicable Promptly after the Effective Time, but and in any event no later than five Business Days after the third (3rd) Business Day thereafterEffective Time, the Surviving Corporation Parent shall send, or shall cause the Paying Exchange Agent to mail send, to each record holder of record shares of an outstanding certificate or outstanding certificates Company Common Stock (“Certificates”other than 102 Company Shares) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to at the Effective Time represented outstanding Shares that whose shares were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), 2.03(a) a letter of transmittal and instructions in customary form reasonably satisfactory to the Company which shall (i) a form of letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.04(g)) to the Paying Exchange Agent, and which letter shall be ) for use in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) exchange and (ii) instructions request for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange a tax residency declaration and/or a Valid Withholding Certificate and any other information necessary for Parent to determine whether any amounts need to be withheld from the Merger Consideration payable with respect thereto to such Person pursuant to Section 3.1(athe terms of the Ordinance (in each case, subject to the terms of the Withholding Tax Ruling, if obtained), the Code or any other provision of U.S. state or local or non-U.S. Applicable Law. Upon Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the shares of Company Common Stock represented by a Certificate upon (i) surrender to the Exchange Agent of a Certificate to the Paying AgentCertificate, together with such a duly completed and validly executed letter of transmittal transmittal, or (orii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a Bookbook-Entry Shareentry transfer of shares of Company Common Stock, upon and, in each case, delivery to the Exchange Agent of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)be requested by the Exchange Agent. Until so surrendered or transferred, the holder of each such Certificate or Book-Entry Share shall be entitled represent after the Effective Time for all purposes only the right to receive in exchange therefor the such Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceledConsideration. No interest will shall be paid or accrued on any Merger Consideration the cash payable in respect upon the surrender or transfer of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Sharesuch Certificate.
(cd) If payment any portion of the Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of to such payment that (i) either such Certificate so surrendered shall be properly endorsed or shall otherwise be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that transfer, (ii) the Person requesting such payment shall have paid pay to the Exchange Agent any transfer and other Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established establish to the satisfaction of Parent the Exchange Agent that such tax either Tax has been paid or is not applicable.
payable and (diii) Until surrendered as contemplated by this Section 3.3, each the Withholding Agent was provided with a Valid Withholding Certificate or Book-Entry Share shall be deemed at any time after other documentation reasonably satisfactory to the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereonWithholding Agent.
(e) All Notwithstanding anything herein to the contrary, any Merger Consideration delivered upon the surrender for exchange Consideration, Option Payment, SAR Payment, RSU Payment or PSU Payment payable in respect of Certificates 102 Company Securities or Book-Entry Shares 3(i) Company Options shall be transferred, in accordance with the terms of this Article III Section 2.04, to the 102 Trustee, for the benefit of the beneficial owners thereof, and be released by the 102 Trustee to the beneficial owners of such 102 Company Securities or 3(i) Company Options in accordance with the requirements of Section 102 of the Ordinance, the Interim Option Tax Ruling and the Option Tax Ruling, if obtained.
(f) All Merger Consideration paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Certificates or Book-Entry Shares. At Certificate and from and after the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of shares of Company Common Stock on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective TimeCorporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry SharesCorporation, such Certificates or Book-Entry Shares they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with the procedures set forth, in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand2.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required holder’s compliance with the replacement requirements established by the Paying Agent (orExchange Agent, including, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond bond, in such customary amount as Parent or the Paying Agent Surviving Corporation may determine is reasonably necessary direct, as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver pay, in exchange for such lost, stolen or destroyed Certificate Certificate, the Merger Consideration payable to be paid in respect thereof pursuant to of the shares of Company Common Stock formerly represented by such Certificate, as contemplated under this AgreementArticle 2.
(jh) Any portion of the Merger Consideration made available Payment Fund that remains unclaimed by the holders of shares of Company Common Stock twelve months after the Effective Time shall be delivered to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to ParentSurviving Corporation, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to Parent and the Surviving Corporation for payment of the Merger Consideration.
Appears in 2 contracts
Samples: Merger Agreement (DSP Group Inc /De/), Merger Agreement (DSP Group Inc /De/)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub the Company shall enter into an agreement appoint a Person authorized to act as exchange agent in connection with a bank or trust company designated the Transactions, which Person shall be selected by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”). On ) and shall act on behalf of the day holders of Company Common Shares entitled to the Merger Consideration, and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to Parent and the Company for the purpose of (i) exchanging Certificates or Uncertificated Shares for the Merger Consideration payable in respect of the Company Common Shares and immediately following(ii) effecting the contribution in kind of newly issued shares of HoldCo to Parent against the issuance of new Parent Registered Shares, as contemplated by Section 2.01(b) of each of the Company Disclosure Letter and the Parent Disclosure Letter. As of the Effective Time, or as otherwise contemplated by Section 2.01(b) of each of the Company Disclosure Letter and the Parent or Merger Sub Disclosure Letter, Parent shall deposit (or cause to be deposited) with the Paying Exchange Agent, in trust for the benefit of the holders of Company Common Shares, an amount as consideration for the deliveries by the Exchange Agent pursuant to Section 2.01(b) of each of the Company Disclosure Letter and the Parent Disclosure Letter, and for exchange in accordance with this Section 2.03 through the Exchange Agent, (A) Parent Registered Shares issued pursuant to Section 2.02(a), (B) cash sufficient to deliver pay the aggregate Cash Consideration payable pursuant to holders Section 2.02(a) and (C) the cash to be paid in lieu of fractional shares. Parent agrees to promptly deposit with the Exchange Agent from time to time any additional cash or Parent Registered Shares the Merger Consideration required to pay any dividends or other distributions to which they such holders are entitled pursuant to Section 3.12.03(g). Any All Parent Registered Shares and cash deposited with the Paying Exchange Agent pursuant to this Section 2.03 shall hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent”.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Exchange Agent shall cause the Paying Agent to mail or otherwise deliver to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Company Common Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into who has the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), hereunder: (i) a form of letter of transmittal (the “Letter of Transmittal”), which shall specify that delivery shall be effectedthat, and in respect of any Certificate, risk of loss and title shall pass only upon receipt thereof (or of an affidavit of loss in lieu thereof) by the Exchange Agent or, in the case of Uncertificated Shares, upon adherence to the Certificates held by such Person shall pass, only upon proper delivery procedures set forth in the Letter of the Certificates to the Paying AgentTransmittal, and which letter shall be in customary such form and contain have such other customary provisions as Parent or and the Paying Agent Company may reasonably specify, (ii) any notice required pursuant to the Cayman Companies Law, and (iiiii) instructions for use in effecting the surrender of the Certificates held by any holder of Company Common Shares represented by Certificates. In the event a holder of Company Common Shares does not deliver to the Exchange Agent a duly executed and completed Letter of Transmittal and does not deliver the Certificate(s) (or an affidavit of loss in lieu thereof), where applicable, such Certificates or Book-Entry Shares in exchange for Person shall not be entitled to receive the Merger Consideration payable relating to such Certificate or Uncertificated Share unless and until such Person delivers a duly executed and completed Letter of Transmittal and Certificate(s) (or an affidavit loss in lieu thereof), as applicable, to the Exchange Agent. Each Certificate or Uncertificated Share shall at any time after the Effective Time represent only the right to receive, upon compliance with respect thereto these requirements, the Merger Consideration pursuant to Section 3.1(a)2.02 and this Section 2.03. Upon surrender The delivery of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (Letter of Transmittal is a “Proper Delivery”), the condition to each holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor Company Common Shares receiving any portion of the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) Upon the Exchange Agent’s receipt of a duly executed and completed Letter of Transmittal and the surrender of the Certificates (or an affidavit loss in lieu thereof), as applicable, the Exchange Agent shall deliver, in accordance with Section 2.02(a), to such holder of Company Common Shares (i) the Merger Consideration and (ii) cash in lieu of any fractional Parent Registered Shares and any dividends and distributions with respect to the Share Consideration as contemplated in Section 2.06 or Section 2.03(g) for each Company Common Share. The Parent Registered Shares constituting part of such Merger Consideration shall be in uncertificated book entry form. Following the Effective Time, each Certificate or Uncertificated Share shall represent only the right to receive the Merger Consideration. Parent, the Company and the Exchange Agent may agree on transfer procedures in addition to or different from the procedures set forth above in order to effect the exchange and payment contemplated in this Section 2.03.
(d) If payment any portion of the Merger Consideration (or cash in lieu of any fractional Parent Registered Shares or any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.06 or Section 2.03(g)) is to be made paid to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Company Common Share is registered, it shall be a condition of to such payment that such Certificate so surrendered (i) all documents reasonably requested by the Exchange Agent shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred provided, and that (ii) the Person requesting such payment shall have paid pay to the Exchange Agent any transfer and or other Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Uncertificated Share surrendered or shall have established establish to the satisfaction of Parent the Exchange Agent that such tax either Tax has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereonpayable.
(e) All The Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares paid in accordance with the terms of this Article III 2 upon conversion of any Company Common Shares shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Company Common Shares. At the Effective Time, the stock transfer books of the Company shall be closed From and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented subject to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Cayman Companies Law in the case of Dissenting Shares, all holders of Company Common Shares shall cease to have any rights as shareholders of the Company other than the right to receive the Merger Consideration (and cash in lieu of any fractional Parent Registered Shares or any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.06 or Section 2.03(g)) into which the shares represented by such Certificates or Uncertificated Shares have been converted pursuant to this Agreement. After the Effective Time, there shall be no further registration or transfers of Company Common Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to unclaimed by the former holders of Certificates or Book-Entry Company Common Shares as of the one (1) year after anniversary of the Effective Time shall be delivered returned to Parent, upon demand, and any holders . Any former shareholders of Certificates or Book-Entry Shares the Company who have not theretofore complied with this Article III 2 or the Letter of Transmittal and instructions shall thereafter look only to the Surviving Corporation Parent (subject to abandoned property, escheat or other similar Applicable Laws), as general creditors thereof, for payment of the Merger Consideration with in respect of each Company Common Share as such shareholder held prior to Shares formerly represented by such Certificate or Book-Entry Sharethe Effective Time as determined pursuant to this Agreement, in each case, without interest.
(h) None any interest thereon. Notwithstanding the foregoing and anything to the contrary, none of Parent, HoldCo, Merger Sub, the Company, the Surviving CorporationCompany, the Paying Exchange Agent or any other Person shall be liable to any Person former holder of Company Common Shares for any amount delivered in respect of cash from the Exchange Fund properly delivered good faith to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If laws. Notwithstanding anything to the contrary, any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to be paid in accordance with this Article 2 that remains undistributed to any former holder of Company Common Shares, as of immediately prior to the Paying Agent date on which the Merger Consideration that would otherwise escheat to or become the property of any Governmental Authority, shall, to the maximum extent permitted by Applicable Law, automatically become the property of the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.
(g) Following the compliance by the holders of Company Common Shares with the requirements of this Section 2.03, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the Parent Registered Shares constituting the Share Consideration have been registered, (i) in connection with the payment of the Share Consideration, (A) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.3(a2.06, and (B) the aggregate amount of all dividends or other distributions payable with respect to pay for such Parent Registered Shares for which appraisal rights have been perfected as described with a record date on or after the Effective Time that were paid prior to the time of such compliance, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole Parent Registered Shares constituting the Share Consideration with a record date on or after the Effective Time and prior to the time of such compliance and with a payment date subsequent to the time of such compliance. No dividends or other distributions with respect to Parent Registered Shares constituting the Share Consideration, and no cash payment in lieu of fractional shares pursuant to Section 3.5 2.06, shall be returned paid to Parentthe holder of any Company Common Shares with respect to such Company Common Shares prior to such holder’s compliance with the requirements of this Section 2.03.
(h) The payment of any transfer, upon demanddocumentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Common Shares in connection with the Merger, and the filing of any related Tax Returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.
Appears in 2 contracts
Samples: Merger Agreement (Transocean Ltd.), Merger Agreement (Transocean Ltd.)
Exchange and Payment. (a) Prior At or prior to the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of shares of Company Common Stock immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares), an amount book-entry shares (or certificates if requested) representing the shares of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled Parent Common Stock issuable pursuant to Section 3.12.1(a) constituting at least the amounts necessary to pay Merger Consideration in accordance with the terms and conditions of this Agreement. Any In addition, Parent shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time, any dividends or distributions payable pursuant to Section 2.3(d). All certificates representing shares of Parent Common Stock, dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the Effective Time, but and in any event no later than the third (3rd) three Business Day Days thereafter, the Surviving Corporation shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares shares of Company Common Stock that were converted into the right to receive the Merger Consideration with respect thereto Consideration, any dividends or distributions payable pursuant to Section 3.1(a2.3(d), and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration Consideration, any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a2.3(d), and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f). Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect shares of the Shares Company Common Stock formerly represented by such Certificate (other than Excluded Shares) (A) that number of whole shares of Parent Common Stock (after taking into account all shares of Company Common Stock then held by such holder under all Certificates so surrendered) to which such holder of Company Common Stock shall have become entitled pursuant to Section 2.1(a), (B) any dividends or Book-Entry Share other distributions payable pursuant to Section 2.3(d) and (C) any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f), and the Certificate so surrendered shall forthwith be canceledcancelled. Promptly after the Effective Time and in any event not later than the third Business Day thereafter, the Surviving Corporation shall cause the Exchange Agent to issue and send to each holder of uncertificated shares of Company Common Stock represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares, (1) that number of whole shares of Parent Common Stock to which such holder of Book-Entry Shares shall have become entitled pursuant to the provisions of Section 2.1(a) (which shall be in book-entry form unless a physical certificate is requested), (2) any dividends or other distributions payable pursuant to Section 2.3(d) and (3) any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f), without such holder being required to deliver a Certificate or an executed letter of transmittal to the Exchange Agent, and such Book-Entry Shares shall then be cancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions or cash in lieu of fractional shares, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made Until surrendered as promptly as practicable after the date of Proper Delivery of the applicable contemplated by this Section 2.3, each Certificate or Book-Entry ShareShare shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof, any dividends or other distributions payable pursuant to Section 2.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f).
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Evoqua Water Technologies Corp.), Agreement and Plan of Merger (Xylem Inc.)
Exchange and Payment. (a) Prior to the Effective TimeTime (but in no event later than three Business Days prior to the Closing Date), Parent and shall select a U.S. bank or trust company reasonably acceptable to the Company (which may use a local Israeli sub-paying agent) to act as the paying agent for the Merger Sub (the “Paying Agent”) and, in connection therewith, shall enter into an agreement with a bank or trust company designated by Parent and the Paying Agent in form reasonably acceptable satisfactory to the Company and Parent.
(the “Paying Agent”). On the day of (and immediately followingb) Immediately after the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for payment to the benefit of holders of Shares (other than the Excluded Shares) pursuant to the provisions of this Article II, an amount of cash sufficient to deliver to holders of Shares pay the Merger aggregate Cash Consideration to which they are entitled pursuant to in accordance with Section 3.1. Any 2.1(a) and Section 2.2 (such cash deposited with the Paying Agent shall hereinafter be amount being referred to herein as the “Exchange Payment Fund.” The Exchange ”) (it being understood and agreed, for the avoidance of doubt, that Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement). Except as otherwise provided in this Agreement, the Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle II.
(bc) As soon as reasonably practicable after Promptly following the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, Parent and the Surviving Corporation Company shall cause the Paying Agent to mail to each holder of record (as of an outstanding immediately prior to the Effective Time) of (i) a certificate or outstanding certificates (the “Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that or (ii) uncertificated Shares (the “Uncertificated Shares”), in each case, whose shares were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a)Consideration, (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify), (B) an appropriate declaration and/or Valid Tax Certificate in which the beneficial owner of Shares provides certain information necessary for Parent to reasonably determine whether any Tax amounts need to be withheld from the Merger Consideration payable to such beneficial owner pursuant to the terms of the Ordinance (in each case, subject to the provisions of Section 2.3, Section 2.4 and Section 5.17), the Code or any provision of state, local, Israeli or foreign Tax law, and (iiC) instructions (including instructions from the Paying Agent) for use in effecting the surrender of such the Certificates or Book-Entry and Uncertificated Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate (or affidavit of loss in lieu thereof) for cancellation to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent or Parent may reasonably require (a “Proper Delivery”including the declaration and/or Valid Tax Certificate), the holder of such Certificate shall be entitled to receive in exchange for the Shares formerly represented by such Certificate (other than Excluded Shares) the Merger Consideration for each such Share (subject to deduction of Tax required to be withheld under applicable Tax Law), and the Certificate so surrendered shall forthwith be cancelled. In the case of a book-entry transfer of Uncertificated Shares (other than Excluded Shares), upon receipt of such letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent or Book-Entry Share Parent may reasonably require (including the declaration and/or Valid Tax Certificate), the holders of such Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration that for each such holder is entitled Share (subject to receive pursuant deduction of any Tax required to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share be withheld under applicable Tax Law), and the Certificate transferred Uncertificated Shares so surrendered shall forthwith be canceled. The Paying Agent shall accept such Certificates and transferred Uncertificated Shares upon compliance with such reasonable terms and conditions as the Paying Agent may reasonably impose to effect an orderly exchange thereof in accordance with normal exchange practices. No interest will shall be paid or accrued for the benefit of holders of the Certificates and Uncertificated Shares on the Merger Consideration payable upon the surrender of such Certificates and Uncertificated Shares pursuant to this Section 2.3(c). Payments and deliveries to be made under this Agreement shall be made in U.S. dollars by check or wire transfer of immediately available funds to such address or bank accounts as shall be set forth in the letter of transmittal. Notwithstanding anything to the contrary in this Section 2.3(c), any Merger Consideration payable received by the Paying Agent in respect consideration for Shares issued as a result of Certificates the exercise or Book-Entry vesting (as applicable) of 102 Company Options which are held by the 102 Trustee and are subject to Tax pursuant to Section 102(b)(2) and 102(b)(3) of the Ordinance (the “102 Shares. Payment of Merger Consideration ”), shall be made as promptly as practicable after transferred to the date 102 Trustee subject to the provisions of Proper Delivery Section 102 of the applicable Certificate or Book-Entry ShareOrdinance and any Tax ruling received from the Israeli Tax Authority (the “ITA”) regarding such 102 Company Options including the Option Tax Ruling.
(cd) If payment Payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Uncertificated Share is registered, it shall registered (subject to reduction for any Tax required to be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicablewithheld under applicable Tax Law).
(de) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Uncertificated Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, thereof pursuant to Section 3.1(a)this Article II, without any interest thereon.
(ef) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Uncertificated Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Uncertificated Shares. At the Effective Time, the stock transfer books shareholders registry of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation Company or the Paying Agent for transfer or transfer is sought for Book-Entry Uncertificated Shares, such Certificates or Book-Entry Uncertificated Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(fg) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(gh) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Uncertificated Shares one (1) year six months after the Effective Time shall be delivered to Parentthe Surviving Company, upon demand, and any remaining holders of Certificates or Book-Entry Uncertificated Shares who have not theretofore complied with this Article III (except to the extent representing Excluded Shares) shall thereafter look only to the Surviving Corporation Company as general creditors thereof for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(hi) None Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, the Surviving CorporationCompany, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Uncertificated Shares shall not have been exchanged prior to two (2) years after the Effective Time (or immediately prior to such earlier date on which the related Merger Consideration would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration in respect thereof shall, to the extent permitted by applicable Law, become the property of the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.
(ij) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it it, any of its Affiliates or the Surviving Corporation Company with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (UNITED THERAPEUTICS Corp), Merger Agreement (SteadyMed Ltd.)
Exchange and Payment. (a) Prior At or prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub HomeStreet shall deposit (or cause to be deposited) with U.S. Bank Corporate Trust Services (the Paying “Exchange Agent”), in trust for the benefit of holders of Shares, an amount and shall instruct the Exchange Agent to timely pay and distribute, sufficient (i) shares of cash sufficient HomeStreet Common Stock to deliver to holders permit prompt payment of Shares the Merger Consideration and (ii) cash to which they are entitled pursuant to Section 3.1permit prompt payment of the cash in lieu of fractional shares of AGREEMENT AND PLAN OF MERGER BETWEEN HOMESTREET, INC. Any cash deposited AND SIMPLICITY BANCORP, INC. EXECUTION VERSION XxxxXxxxxx Xxxxxx Stock payable in connection with the Paying Agent shall hereinafter be referred to as Merger Consideration (together the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a”), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable practicable, but no later than five (5) business days after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation HomeStreet shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated any Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal and shall be subject to the reasonable approval of Simplicity (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates Shares held by such Person shall pass, only upon proper delivery of the Certificates certificates or electronic record representing to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent HomeStreet or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate Shares to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share Shares shall be entitled to receive in exchange therefor the Merger Consideration that to be paid in consideration for such holder is entitled Shares (subject to receive pursuant to Section 3.1(a) in respect of deduction for any required withholding Tax), and the Shares represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued for the benefit of holders of Shares on any the Merger Consideration payable Consideration. After the surrender of the Shares in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration accordance with this Section 3.3, such Person shall be made as promptly as practicable after the date entitled to receive any such dividends or other distributions, without any interest thereon, which had become payable with respect to shares of Proper Delivery of the applicable Certificate or Book-Entry ShareHomeStreet Common Stock.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share Shares is registered, it shall be a condition of payment that such Certificate Shares so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a such Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent HomeStreet that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share Shares shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration paid or delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III 3 shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company Simplicity shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective TimeCorporation. If, after the Effective Time, Certificates certificates purporting to represent Shares are presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Sharestransfer, such Certificates or Book-Entry Shares certificates shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares3.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one twelve (112) year months after the Effective Time shall be delivered to Parentthe Surviving Corporation upon demand of the Surviving AGREEMENT AND PLAN OF MERGER BETWEEN HOMESTREET, upon demandINC. AND SIMPLICITY BANCORP, INC. EXECUTION VERSION Corporation, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III 3 shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry ShareShares, without interest.
(hg) None of Parent, the Surviving Corporation, the Paying Resulting Bank, the Exchange Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ih) If any Certificate certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent)HomeStreet, of that fact by the Person claiming such Certificate certificate to be lost, stolen or destroyed and, if required by Parent HomeStreet or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent HomeStreet or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or it, the Surviving Corporation or the Resulting Bank with respect to such Certificatecertificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate certificate the Merger Consideration payable in with respect thereof pursuant to this AgreementShares formerly represented by such certificate, without interest.
(ji) Any portion Notwithstanding anything to the contrary contained herein, no fractional shares of HomeStreet Common Stock shall be issued for the Merger Consideration, no dividend or distribution with respect to HomeStreet Common Stock shall be payable on or with respect to any fractional share interest, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights as a stockholder of HomeStreet. In lieu of the Merger Consideration made available issuance of any such fractional share, HomeStreet shall pay to each former holder of Simplicity Common Stock who otherwise would be entitled to receive a fractional share of HomeStreet Common Stock, an amount in cash, rounded to the Paying Agent pursuant nearest cent and without interest, equal to Section 3.3(athe product of (i) the fraction of a share to pay for Shares for which appraisal rights such holder would otherwise have been perfected as described in Section 3.5 entitled and (ii) the Deemed Closing Price. For purposes of determining any fractional share interest, all shares of Simplicity Common Stock owned by a Simplicity shareholder shall be returned combined so as to Parent, upon demandcalculate the maximum number of whole shares of HomeStreet Common Stock issuable to such Simplicity shareholder.
Appears in 2 contracts
Samples: Merger Agreement (Simplicity Bancorp, Inc.), Merger Agreement (HomeStreet, Inc.)
Exchange and Payment. (a) Prior to the Effective Time, Parent and shall appoint an exchange agent in connection with the Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”). On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for Exchange Agent the benefit number of holders shares of Shares, an amount of cash sufficient Parent Common Stock equal to deliver to holders of Shares the Merger aggregate Per Share Stock Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as (the “Exchange Fund.” ”). The Exchange Fund shall not be used for any purpose other than to fund payments of the Per Share Stock Consideration due pursuant to Section 3.1(a)this ARTICLE II. In addition, except as provided in this Agreement. on or prior to the second regularly scheduled payroll date after the Effective Time, Parent shall reserve Parent Common Stock in an amount sufficient to pay all fees the aggregate Per Share Stock Consideration payable to the holders of Company Stock Options in accordance with this ARTICLE II. The Exchange Agent shall, in accordance with SECTION 2.3(c) and expenses pursuant to irrevocable instructions, deliver the whole shares of Parent Common Stock and Fractional Share Consideration and notify the Paying Agentholders of each CVR contemplated to be issued pursuant to SECTION 2.1.
(b) As soon as reasonably practicable after At or prior to the Effective Time, but Parent and the Rights Agent shall enter into the CVR Agreement.
(c) Promptly after the Effective Time (and, in any event no event, not later than the third seven (3rd7) Business Day thereafterDays following the Effective Time), the Surviving Corporation shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (a “Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry SharesCertificate”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (other than Excluded Shares and Dissenting Shares) (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares Certificate in exchange for the Merger Consideration payable with respect thereto pursuant (including instructions for providing to Section 3.1(athe Exchange Agent required Tax documentation, including, as applicable, a properly executed IRS Form W-9 or appropriate IRS Form W-8). Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal)and Tax documentation, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required by Parent or the Paying Agent may reasonably require (a “Proper Delivery”)Exchange Agent, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share (less any required Tax withholdings as provided in SECTION 2.4), and the Certificate so surrendered shall forthwith be cancelled.
(d) The Exchange Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), if any, whose Shares were converted into the right to receive the Merger Consideration, upon receipt of an “agent’s message” and the required Tax documentation by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request), the Merger Consideration for each such Book-Entry Share, and such Book-Entry Shares shall then be canceled. .
(e) No interest will be paid to or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of such Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(cf) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent and the Exchange Agent that such tax either has been paid or Tax is not applicable.
(dg) Until surrendered as contemplated by this Section 3.3SECTION 2.3, each Certificate or and Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(eh) All Merger Consideration delivered upon Any portion of the surrender for exchange Exchange Fund (including any interest received with respect thereto) which remains unclaimed at the one year anniversary of Certificates or Book-Entry Shares in accordance with the terms of this Article III Effective Time shall be deemed to have been paid in full satisfaction of all rights pertaining to delivered by the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented Exchange Agent to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry SharesCorporation, such and thereafter holders of Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject entitled to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such Certificate payable upon due surrender of their Certificates or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawShares.
(i) The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of Shares and Company Warrants for the Merger Consideration.
(j) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent)Parent and the Exchange Agent, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation or any of their Affiliates with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(jk) Any None of Parent, the Surviving Corporation, Merger Sub, the Company, the Exchange Agent or any other Person shall be liable to any Person in respect of any portion of the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been exchanged prior to the date on which the related Merger Consideration made available would escheat to or become the property of any Governmental Entity, such Merger Consideration shall, to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to extent permitted by applicable Law, become the property of Parent, upon demandfree and clear of all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Zevra Therapeutics, Inc.), Merger Agreement (Acer Therapeutics Inc.)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank the Company’s transfer agent or trust company designated other exchange agent selected by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”)) to receive the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article III. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (deliver or cause to be deposited) with delivered to the Paying Agent, Exchange Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled pursuant to in accordance with Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as 3.1(a) (the “Exchange Fund.” ”). The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent and the Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Exchange Agent, incurred by them in connection with the exchange of Shares for the Merger Consideration and other amounts contemplated by this Article III.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding (i) a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that or (ii) uncertificated Shares represented by book-entry (“Book-Entry Shares”) which, in each case, were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person (as defined in Section 9.3(f) hereof) shall pass, only upon proper delivery of the Certificates to the Paying AgentExchange Agent or, in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal, as applicable, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (iiB) customary instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)) and customary instructions consistent with Section 3.3(e) for use in effecting payment for lost, stolen or destroyed Certificates. Upon surrender of a Certificate or Book-Entry Share to the Paying Exchange Agent, together with such letter of transmittal (ortransmittal, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly properly completed and validly executed in accordance with the instructions theretoduly executed, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share (in each case, subject to deduction for any required withholding Taxes), and the such Certificate so surrendered or Book-Entry Share shall forthwith be canceled. No interest will shall be paid or accrued shall accrue on any Merger Consideration cash payable in respect upon surrender of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable any Certificate or Book-Entry Share.
(c) If payment of . In the event that the Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered any Certificate or Book-Entry Share is registered, it shall be a condition of payment that such the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer transfer, that the signatures on such Certificate or such Book-Entry Share any related stock power shall be properly transferred guaranteed and that the Person requesting such payment shall have paid pay any transfer and or other Taxes required by reason of the such payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established establish to the satisfaction of Parent the Surviving Corporation that such tax either has Taxes have been paid or is are not applicable.
(d) . Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender or transfer the Merger Consideration pursuant to Section 3.1(a) payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(ec) All The payment of the applicable Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to the Shares (including the associated Rights) formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
Shares (f) as defined in Section 3.5 hereof). The Paying Exchange Agent shall invest any the cash included in the Exchange Fund as directed by Parent; provided, on a daily basishowever, that no such investment income or gain or loss thereon shall affect the amounts payable to holders of Shares. Any interest or and other income resulting from such investments shall be paid the sole and exclusive property of Parent payable to ParentParent upon its request, upon demandand no part of such earnings shall accrue to the benefit of holders of Shares.
(gd) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one nine (19) year months after the Effective Time shall be delivered to Parent, the Surviving Corporation or one of its Affiliates upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws)Corporation, as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent. Notwithstanding the foregoing, neither the Surviving Corporation, the Paying Agent or Corporation nor any other Person of its Affiliates shall be liable to any Person in respect holder of cash from the Exchange Fund properly delivered Shares 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 two (2) years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity (as defined in Section 4.4(b) hereof)) shall become, to the extent permitted by applicable Law, the property of the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(ie) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(jf) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.3(a) to pay for Dissenting Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parentthe Surviving Corporation or one of its Affiliates, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (I Flow Corp /De/), Merger Agreement (Kimberly Clark Corp)
Exchange and Payment. (a) Prior to Promptly after the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with a bank, transfer agent or trust company mutually agreed to by Parent and the Paying Company (the “Exchange Agent”), in trust for the benefit of holders of shares of Company Common Stock immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), an amount book-entry shares representing the shares of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled Parent Common Stock issuable pursuant to Section 3.13.1(a). Any In addition, Parent shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time, any dividends or distributions payable pursuant to Section 3.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.3(f). All shares of Parent Common Stock, dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Parent shall cause the Paying Exchange Agent to mail furnish to each holder of record of an shares of Company Common Stock outstanding certificate or outstanding certificates (“Certificates”) and to each holder as of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a(the “Applicable Company Shares”), (i) a form of letter of transmittal in substantially the form attached as Exhibit E hereto (which shall specify that delivery shall be effected, and risk the “Letter of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specifyTransmittal”) and (ii) instructions for use in effecting the surrender of such Certificates any certificates (each, a “Certificate”) or Book-Entry Shares uncertificated shares of Company Common Stock that immediately prior to the Effective Time represented Applicable Company Shares, in exchange for (A) the Merger Consideration Consideration, (B) any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a3.3(d), and (C) any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.3(f). Upon surrender of a Certificate the delivery to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery Exchange Agent of such letter Letter of transmittal)Transmittal, duly completed and validly executed in accordance with the instructions thereto, together with any Certificates or other reasonable evidence of ownership of uncertificated Company Common Stock applicable to any Applicable Company Shares covered by such Letter of Transmittal, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the such holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for such Applicable Company Shares (A) that number of whole shares of Parent Common Stock to which such holder is shall have become entitled to receive pursuant to Section 3.1(a) (which shall be in respect uncertificated, book-entry form), (B) any dividends or other distributions payable pursuant to Section 3.3(d) and (C) any cash in lieu of the Shares represented by such Certificate or Book-Entry Share fractional shares of Parent Common Stock payable pursuant to Section 3.3(f), and the Certificate any and all Certificates so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any unpaid dividends and distributions or cash in lieu of fractional shares, if any, payable to such holders of Applicable Company Shares. Until surrendered in accordance with this Section 3.3, each Certificate shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof, any dividends or other distributions payable pursuant to Section 3.3(d) and any cash in lieu of Certificates or Book-Entry Shares. Payment fractional shares of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareParent Common Stock payable pursuant to Section 3.3(f).
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry an Applicable Company Share is registered, it shall be a condition of payment that (i) any Certificate that immediately prior to the Effective Time represented such Certificate so surrendered Applicable Company Share shall be properly endorsed or shall be otherwise in proper form for transfer or and (ii) such Book-Entry Applicable Company Share shall be have been properly transferred and that the Person requesting such payment shall have paid (or caused to be paid) any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry record of such Applicable Company Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate No dividends or Book-Entry Share shall be deemed at any time other distributions with respect to Parent Common Stock with a record date after the Effective Time shall be paid to represent only the holder of any Applicable Company Share with respect to the shares of Parent Common Stock that the holder thereof has the right to receive upon the Merger Consideration payable surrender thereof, and no cash payment in respect lieu of Shares theretofore represented by fractional shares of Parent Common Stock shall be paid to any such Certificate or Book-Entry Shares, as applicable, holder pursuant to Section 3.1(a3.3(f), in each case until the holder thereof shall comply with the delivery requirements set forth in this Article III. Following such compliance, there shall be paid to the record holder thereof, without interest, (i) promptly after such surrender, the amount of any interest thereondividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock and the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 3.3(f) 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 such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock.
(e) All The Merger Consideration delivered Consideration, any dividends or other distributions payable pursuant to Section 3.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.3(f) issued and paid upon the surrender for exchange of Certificates or Book-Entry Applicable Company Shares in accordance with the terms of this Article III shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Certificates or Bookheld in book-Entry Sharesentry form. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation shares of the Shares Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for BookApplicable Company Shares held in book-Entry Sharesentry form, such Certificates or Bookbook-Entry Shares entry shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Parent Common Stock shall invest any cash included be issued upon the surrender for exchange of Certificates or Applicable Company Shares held in the Exchange Fund as directed by Parentbook-entry form, on a daily basis. Any interest no dividends or other income resulting from such investments distributions with respect to the Parent Common Stock shall be paid payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu of the issuance of any such fractional share, upon demandParent shall pay to each former stockholder of the Company who otherwise would be entitled to receive a fractional share of Parent Common Stock an amount in cash (without interest) determined by multiplying (i) the fraction of a share of Parent Common Stock which such holder would otherwise be entitled to receive (taking into account all shares of Company Common Stock held at the Effective Time by such holder and rounded to the nearest thousandth when expressed in decimal form) pursuant to Section 3.1(a) by (ii) the volume weighted average price as of the close of trading of each share of Parent Common Stock traded on Nasdaq for the ten (10) consecutive trading days ending at the close of business ending on the second (2nd) trading day prior to the Closing Date.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Applicable Company Shares one six (16) year months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Applicable Company Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws)Corporation, as general creditors thereof, for payment of the Merger Consideration with respect Consideration, any unpaid dividends or other distributions payable pursuant to Shares formerly represented by such Certificate Section 3.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.3(f) (subject to abandoned property, escheat or Book-Entry Shareother similar laws), without interest.
(h) None of Parent, the Surviving Corporation, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of shares of Parent Common Stock, dividends or other distributions with respect thereto or cash from the Exchange Fund in lieu of fractional shares of Parent Common Stock properly delivered to a public official Governmental Entity pursuant to any applicable abandoned property, escheat or similar Law. If any Applicable Company Shares shall not have been exchanged prior to two (2) years after the Effective Time (or immediately prior to such earlier date on which the related Merger Consideration (and all dividends or other distributions with respect to shares of Parent Common Stock and any cash in lieu of fractional shares of Parent Common Stock pursuant to this Article III) would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration (and such dividends, distributions and cash) in respect thereof shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(i) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Xxxxxx on a daily basis. Any interest and other income resulting from such investments shall be paid to Parent.
(j) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent thereof, any dividends or other distributions payable pursuant to Section 3.3(a3.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand3.3(f).
Appears in 2 contracts
Samples: Merger Agreement (Diffusion Pharmaceuticals Inc.), Merger Agreement (Diffusion Pharmaceuticals Inc.)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company Company) with the Company’s transfer agent (the “Paying Agent”) for the payment of the Merger Consideration to which the Company’s shareholders shall become entitled pursuant to Section 3.1(a). On the day of (and immediately following) Promptly after the Effective TimeTime on the Closing Date, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as 3.1(a) (the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a). The Payment Fund may be invested by the Paying Agent as directed by Parent, except as provided in that (i) no such investment or losses thereon shall relieve Parent or the Surviving Corporation from making the payments required by this Agreement. Article III or affect the amount of Merger Consideration payable to the holders of the Shares, and following any losses, Parent shall pay all fees and expenses promptly provide additional funds to the Paying Agent to add to the Payment Fund for the benefit of the Paying AgentCompany’s shareholders immediately prior to the Effective Time in the amount of any such losses and (ii) such investments shall be in short term obligations of the United States with maturities of no more than 30 days and guaranteed by the United States and backed by the full faith and credit of the United States or in commercial paper obligations rated P-1 or A-1 or better by Xxxxx’x Investors Services, Inc. or Standard & Poor’s Corporation, respectively. Any interest or other income resulting from such investments shall be payable to the Surviving Corporation.
(b) As soon promptly as reasonably practicable after the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, Parent and the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of (i) an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into or (ii) uncertificated Shares represented by book-entry immediately prior to the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(aEffective Time (“Book-Entry Shares”), (iA) a form of letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person shall pass, only upon proper delivery of the Certificates to the Paying AgentAgent or, and which in the case of Book-Entry Shares, upon adherence to the customary procedures set forth in the letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specifyof transmittal) and (iiB) instructions for use in effecting the surrender of such Certificates or Book-Book Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate or Book-Entry Share to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions theretoexecuted, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceledShare. No interest will shall be paid or accrued shall accrue on any Merger Consideration payable in respect upon surrender of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable any Certificate or Book-Entry Share.
(c) If payment of . In the event that the Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered any Certificate or Book-Entry Share is registered, it shall be a condition of payment that such the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer transfer, that the signatures on such Certificate or such Book-Entry Share any related stock power shall be properly transferred guaranteed and that the Person requesting such payment shall have paid pay any transfer and or other Taxes required by reason of the such payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established establish to the satisfaction of Parent the Surviving Corporation that such tax either has Taxes have been paid or is are not applicable.
(d) . Until surrendered as contemplated by this Section 3.33.3(b), each Share represented by a Certificate or and each Book-Entry Share (in each case other than Dissenting Shares) shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender or transfer the Merger Consideration payable in respect of Shares each Share theretofore represented by such Certificate or Book-Entry SharesShare, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(ec) Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and The Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(d) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to delivery of all documents required hereunder and applicable Law in the case of Dissenting Shares.
(fe) The At any time following the date that is six months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent shall invest to deliver to it any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
Payment Funds (g) Any portion of the Exchange Fund (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed have been made available to the Paying Agent and that have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), ) only as general creditors thereof, for payment of the Merger Consideration thereof with respect to Shares formerly represented by such the Merger Consideration, without any interest, payable upon due surrender of their Certificate or Book-Entry Share, without interestShares.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(if) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Stec, Inc.), Merger Agreement (Stec, Inc.)
Exchange and Payment. (a) Prior to the Effective TimeClosing, Parent Parent, Merger Sub and Merger Sub Partnership shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company and the Partnership) with Equiniti Trust Company to act as agent for the equityholders of the Company and the Partnership in connection with the Mergers (the “Paying Agent”)) to receive the applicable Merger Consideration to which holders of Company Shares or Partnership Units shall become entitled pursuant to this Article II. On At or prior to the day of (and immediately following) the Effective TimeClosing, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any this Article II (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Paying Agent shall make payments of the Company Merger Consideration and the Partnership Merger Consideration out of the Payment Fund in accordance with this Agreement. The Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article II, except as provided in this Agreement. Parent The Surviving Company shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Company Shares and Partnership Units for the applicable Merger Consideration.
(b) As soon as reasonably practicable Promptly after the Effective Time, but in any event no later than the third (3rd) Business Day thereafterClosing, the Surviving Corporation Company shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates that (“Certificates”i) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Company Merger Effective Time represented outstanding Company Shares (each, a “Share Certificate”) that were converted into the right to receive the Per Share Merger Consideration with respect thereto pursuant to Section 3.1(a)2.1(a)(i) and (ii) immediately prior to the Partnership Merger Effective Time represented outstanding Partnership Units (together with the Share Certificates, the “Certificates”) that were converted into the right to receive the Per Partnership Unit Merger Consideration with respect thereto pursuant to Section 2.1(b)(i): (iA) a form of letter of transmittal in customary form (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 2.3(i)) to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) ); and (iiB) instructions for use in effecting the surrender of such Certificates (or Book-Entry Shares affidavits of loss in lieu thereof as provided in Section 2.3(i)) in exchange for the applicable Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a)(i) and Section 2.1(b)(i). Upon surrender of a Certificate (or an affidavit of loss in lieu thereof as provided in Section 2.3(i)) to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may be reasonably require (a “Proper Delivery”)required, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the applicable Merger Consideration for each Company Share or Partnership Unit, as applicable, formerly represented by such Certificate (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be canceled. Promptly after the Closing Date, the Paying Agent shall issue and deliver to each holder of uncertificated Company Shares or Partnership Units represented by book entry (“Book-Entry Interests”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a)(i) and Section 2.1(b)(i) in respect of the Shares represented by such Certificate or Book-Entry Share Interests, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Interests shall forthwith then be canceled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Interests on any the applicable Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareInterests.
(c) If payment of the applicable Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share Interest is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share Interest shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the applicable Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share Interest surrendered or shall have established to the satisfaction of Parent the Surviving Company or the Partnership, as applicable, that such tax Tax either has been paid or is not applicable.
(d) Until surrendered or transferred as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share Interest (other than any Certificate or Book-Entry Interest evidencing Company Shares to be canceled in accordance with Section 2.1(a)(ii)) shall be deemed at any time after the Company Merger Effective Time or the Partnership Merger Effective Time, as applicable, to represent only the right to receive the applicable Merger Consideration payable in respect of Company Shares or Partnership Units theretofore represented by such Certificate or Book-Entry SharesInterests, as applicable, pursuant to Section 3.1(a2.1(a)(i) and Section 2.1(b)(i), without any interest thereon.
(e) All Prior to the Closing, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 10:30 a.m. (Dallas time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Company Shares held of record by DTC or such nominee immediately prior to the Company Merger Effective Time multiplied by the Per Share Merger Consideration delivered (such amount, the “DTC Payment”) and (ii) if the Closing occurs after 10:30 a.m. (Dallas time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) At the Company Merger Effective Time or the Partnership Merger Effective Time, as applicable, holders of Company Shares or Partnership Units (that are converted into the right to receive Per Share Merger Consideration or Per Partnership Unit Merger Consideration, as applicable) shall cease to be, and shall have no rights as, stockholders of the Company or limited partners of the Partnership, other than the right to receive the Per Share Merger Consideration or Per Partnership Unit Merger Consideration, as applicable, as provided under Section 2.1. All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares Interests in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Company Shares or Partnership Units, as applicable, formerly represented by such Certificates or Book-Entry SharesInterests. At On the Effective TimeClosing Date, the stock transfer books of the Company and the unit transfer books of the Partnership shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation Company Shares or Partnership Units (except for the transfer of Partnership Units owned by the Shares that were outstanding immediately prior Company to the Effective TimeSurviving Company in the Company Merger and the transfer of Partnership Units to Parent Affiliate in the Affiliate Contribution). If, after the Effective TimeClosing, Certificates are presented to the Surviving Corporation Company, the Surviving Partnership or the Paying Agent for transfer or transfer is sought for Book-Entry SharesInterests, such Certificates or Book-Entry Shares Interests shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(fg) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parentthe Surviving Company, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), the Surviving Company shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Company.
(gh) Any portion of At any time following the Exchange Fund date that is 12 months after the Closing Date, the Surviving Company shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Interests, and thereafter such holders shall be delivered entitled to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation Company or the Surviving Partnership (subject to abandoned property, escheat or other similar Laws), as applicable, only as general creditors thereof, for payment of the Merger Consideration thereof with respect to Shares formerly represented by such the applicable Merger Consideration payable upon due surrender of their Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawInterests.
(i) If any Certificate shall Certificates have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required and the holder’s compliance with the replacement requirements established by Parent or the Paying Agent, including, if necessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it such Certificates, the Surviving Company or the Surviving Corporation Partnership with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) None of Parent, Merger Sub, the Surviving Company, the Partnership, Merger Partnership, the Surviving Partnership, the Company or the Paying Agent, or any employee, officer, trustee, director, agent or Affiliate thereof, shall be liable to any Person in respect of Merger Consideration from the Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any portion amounts remaining unclaimed by holders of Certificates or Book-Entry Interests immediately prior to the time at which such amounts would otherwise escheat to, or become the property of, any Governmental Entity shall, to the extent permitted by applicable Law, become the property of the Merger Consideration made available Surviving Company, free and clear of any claims or interest of any such holders or their successors, and any former holder of Company Shares or Partnership Units who has not theretofore complied with this Section 2.3 shall thereafter look only to the Paying Agent pursuant to Section 3.3(a) to pay Surviving Company for Shares payment of their claim for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parentapplicable Merger Consideration, upon demandwithout any interest thereon.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (InfraREIT, Inc.)
Exchange and Payment. (a) Prior to the Effective Acceptance Time, Parent and Merger Sub shall enter into an agreement with designate a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”) to act as agent for the holders of Shares to receive the Offer Price pursuant to Section 1.1(c). On At or prior to the day of (and immediately following) the Effective Acceptance Time, Parent shall deposit, or Merger Sub shall deposit (or cause to be deposited) , with the Paying Agent, in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders make payment of Shares the Merger Consideration to which they are entitled Offer Price payable pursuant to Section 3.1. Any cash deposited with Section 1.1(c), the Option Consideration, the RSU Consideration and the Warrant Consideration (such amount paid to the Paying Agent shall hereinafter be referred to as in accordance with the foregoing, the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any other purpose other than to fund payments due pursuant to Section 3.1(a), except as otherwise provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable after Prior to the Effective Acceptance Time, but in any event no later than Parent and the third (3rd) Business Day thereafter, Company shall use their commercially reasonable efforts to agree on the Surviving Corporation shall cause the Paying Agent to mail to each holder calculation of record cash amounts of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery all of the Certificates to the Paying AgentOffer Price, Option Consideration, RSU Consideration and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Warrant Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of hereof, including as it relates to any applicable withholding amounts. Company agrees to make the relevant calculations and related back-up available to Parent, as reasonably requested by Xxxxxx and as required for compliance with Section 1.6(a) hereto. Notwithstanding the foregoing, nothing in this Article III Section 1.6(b) shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation limit any Person’s (including Parent’s or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in Agent’s) withholding rights under Section 1.7 with respect to the cash amounts deposited pursuant to this Article III, subject to applicable Law in the case of Dissenting SharesSection 1.6(b).
(fc) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by ParentXxxxxx, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(hd) None of Parent, the Surviving CorporationCompany (and its successor), the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) . Any portion of the Merger Consideration made available Payment Fund remaining unclaimed by holders at such time at which such amounts would otherwise escheat to or become the property of any Governmental Entity shall become, to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parentextent permitted by applicable Law, upon demandthe property of the Company (or its successor), free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable the Company’s transfer agent to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article II. On the day of (Promptly, and immediately following) in no event later than 1 Business Day after the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying AgentAgent (i) stock certificates representing Parent Shares and (ii) cash, in trust for each case in an aggregate amount equal to the benefit number of holders of Shares, an Parent Shares and amount of cash sufficient into which Company Shares have been converted in accordance with Section 2.1(a). Prior to deliver the Effective Time, Parent will provide to holders the Company written certification from the commitment parties under the Commitment Letters that they will release funds after the Effective Time. In addition, Parent shall deposit with the Paying Agent, as necessary from time to time at or after the Effective Time, cash in lieu of Shares the Merger Consideration to which they are entitled any fractional shares payable pursuant to Section 3.12.5 and any dividends or other distributions payable pursuant to Section 2.6. Any All Parent Shares, cash and dividends and distributions deposited with the Paying Agent pursuant to this Section 2.3(a) shall hereinafter be referred to as the “Exchange Payment Fund.” ”. The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article II, except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) fifth Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail be mailed to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Company Shares (“Company Certificates”) that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates held by such Person person shall pass, only upon proper delivery of the Company Certificates to the Paying Agent, Agent and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (iiB) instructions for use in effecting the surrender of such Company Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)2.2. Upon surrender of a Company Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions theretoexecuted, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Company Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Company Share formerly represented by such Company Certificate or Book-Entry Share (subject to deduction for any required withholding Tax), and the such Company Certificate so surrendered shall forthwith be canceled. Promptly following the Effective Time (but in no event later than 5 Business Days following the Effective Time), to the extent consistent with the Paying Agent’s standard procedures, Parent shall cause the Paying Agent to issue and deliver the Merger Consideration to holders of uncertificated Company Shares represented by book-entry (the “Book-Entry Company Shares”) (either directly or through the Depository Trust Company), without each holder of Book-Entry Company Shares being required to deliver a Company Certificate or any executed letter of transmittal to the Paying Agent, and such Book-Entry Company Shares shall forthwith be cancelled. No interest will be paid or accrued on any Merger Consideration payable in respect to holders of Company Certificates or Book-Entry Company Shares. Payment In the event of Merger Consideration shall be made as promptly as practicable after a transfer of ownership of Company Shares that is not registered in the date of Proper Delivery transfer records of the applicable Certificate or Book-Entry Share.
(c) If payment of Company, the Merger Consideration is to may be made issued to a Person other than transferee if the Person in whose name Company Certificate representing such Company Shares is presented to the surrendered Certificate or Book-Entry Share is registeredPaying Agent, it shall be a condition of payment that accompanied by all documents required to evidence and effect such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other by evidence that any applicable stock transfer Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) paid. Until surrendered as contemplated by this Section 3.32.3, each Company Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration or the right to demand to be paid the “fair value” of the shares represented thereby as contemplated by Section 2.7, as applicable.
(c) At any time following the date that is 12 months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) that have been made available to the Paying Agent and that have not been disbursed to holders of Company Certificates and Book-Entry Company Shares and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the Merger Consideration payable in respect upon due surrender of Shares theretofore represented by such Certificate or their Company Certificates and Book-Entry Company Shares. The Surviving Corporation shall pay all charges and expenses, as applicableincluding those of the Paying Agent, pursuant to Section 3.1(a), without any interest thereonin connection with the exchange of Company Shares for the Merger Consideration.
(ed) All Merger Consideration delivered cash paid and Parent Shares issued upon the surrender for exchange of Company Certificates or Book-Entry Company Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares Company Shares, formerly represented by such Company Certificates or Book-Entry Company Shares. At After the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Company Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Company Shares, such Company Certificates or Book-Entry Company Shares shall be canceled and exchanged as for the consideration provided for, and in accordance with the procedures set forth in, this Article III, subject to applicable Law in the case of Dissenting SharesII.
(fe) The Paying Agent shall invest any the cash included in the Exchange Payment Fund as directed by Parent, Parent on a daily basis; provided that (i) no such investment or losses thereon shall affect the Merger Consideration payable to the holders of Company Shares and following any losses Parent shall promptly provide additional funds to the Paying Agent for the benefit of the stockholders of the Company in the amount of any such losses and (ii) such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Any interest or other income resulting from produced by such investments shall will be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only payable to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws)Parent, as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interestParent directs.
(hf) None of Parent, the Company, the Surviving Corporation, Corporation or the Paying Agent or any other Person person shall be liable to any Person person in respect of Parent Shares, any dividends or distributions with respect thereto, any cash in lieu of fractional shares or any cash from the Exchange Fund Payment Fund, in each case properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ig) If In the event that any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person the holder of a bond in such a reasonable and customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such the Company Certificate, the Paying Agent will deliver in exchange for such the lost, stolen or destroyed Company Certificate the applicable Merger Consideration payable in respect thereof of the Company Shares represented by such Company Certificate pursuant to this AgreementArticle II.
(jh) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a2.3(a) to pay for Company Shares for which appraisal rights have been perfected as described in Section 3.5 2.7 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company) with the Company’s transfer agent to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article II. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any 2.1 (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article II, except as provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other amounts contemplated by this Article II.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) second Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an Shares that were outstanding and represented by a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that and were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or of the Paying Agent may reasonably specifyas agreed to by Parent and shall include a customary waiver of rights as a former equityholder of the Company) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate (without interest and subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be canceled. Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of uncertificated Shares that were outstanding and represented by book entry immediately prior to the Effective Time (“Book-Entry Shares”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person (as defined below) other than the Person in whose name the any Share represented by any surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Share represented by such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a), without any interest thereon.
(e) All Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration delivered (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed with respect to the Shares outstanding immediately prior to the Effective Time and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(fg) The Paying Agent shall not invest any cash included in the Exchange Payment Fund as unless otherwise directed by Parent; provided, on a daily basisthat any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A 1 or P 1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to satisfy fully all of the payment obligations to be made in cash by the Paying Agent hereunder, Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency of cash required to satisfy fully such cash payment obligations. Any interest or and other income resulting from such investments shall be paid for the sole benefit of the Surviving Corporation and shall be payable to Parent, upon demandthe Surviving Corporation.
(gh) Any portion of At any time following the Exchange Fund date that is one year after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to former holders of Shares represented by Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such payable upon due surrender of their Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawShares.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Foundation Building Materials, Inc.)
Exchange and Payment. (a) Prior Parent shall issue and deposit (or cause to the Effective Time, Parent and Merger Sub shall enter into an agreement be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of shares of Company Common Stock immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), an amount book-entry shares (or certificates if requested) representing the shares of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled Parent Common Stock issuable pursuant to Section 3.13.1(a)(i). Any In addition, Parent shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time any dividends or other distributions payable pursuant to Section 3.4(d). All certificates representing shares of Parent Common Stock, and any dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, the Surviving Corporation parties shall cause the Paying Exchange Agent to mail to each holder of record of an a certificate that immediately prior to the Effective Time represented outstanding certificate or outstanding certificates shares of Company Common Stock (collectively, the “Certificates”) and to each holder of record of uncertificated Shares shares of Company Common Stock represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration (together with respect thereto any dividends or other distributions payable pursuant to Section 3.1(a(d)), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the any Certificates held by such Person shall pass, only upon proper delivery of such Certificates, if any, and identification of the Certificates Book-Entry Shares, if any, to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of any such Certificates or and identifying such Book-Entry Shares in exchange for the Merger Consideration (together with any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a3.4(d)). Upon surrender of a Certificate and identification of the Book-Entry Shares, as applicable, to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect shares of the Shares Company Common Stock formerly represented by such Certificate or Book-Entry Share (other than Excluded Shares or Dissenting Shares) (A) that number of whole shares of Parent Common Stock (after taking into account all shares of Company Common Stock then held by such holder under all Certificates so surrendered and the Book-Entry Shares so identified) to which such holder of Company Common Stock shall have become entitled pursuant to Section 3.1(a)(i) (which shall be in uncertificated book-entry form unless a physical certificate is requested), and (B) any dividends or other distributions payable pursuant to Section 3.4(d), and any Certificate so surrendered surrendered, together with any Book-Entry Shares, shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made Until surrendered as promptly as practicable after the date of Proper Delivery of the applicable contemplated by this Section 3.4, each Certificate or Book-Entry ShareShare shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof (together with any dividends or other distributions payable pursuant to Section 3.4(d)).
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(ei) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest No dividends or other income resulting from such investments shall be paid distributions declared or made with respect to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year Parent Common Stock with a record date after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only paid to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment holder of the Merger Consideration any Company Common Stock with respect to Shares formerly represented by the shares of Parent Common Stock that such Certificate or Book-Entry Shareholder has the right to receive in the Merger until such holder delivers a duly executed letter of transmittal (at which time (or, without interest.
(hif later, on the applicable payment date) None of Parent, the Surviving Corporation, the Paying Agent or any other Person such holder shall be liable entitled, subject to any Person in respect the effect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawLaws, to receive all such dividends and distributions, without interest).
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Allovir, Inc.)
Exchange and Payment. (a) Prior to At or immediately after the Effective Time, Parent and Merger Sub shall enter into an agreement cause HoldCo to deposit (or it will cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable prior to the Company Closing Date (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares, cash in an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration in exchange for all Shares (excluding Dissenting Shares) outstanding immediately prior to which they are the Effective Time and entitled pursuant to payment in accordance with Section 3.1. Any 2.1(a) (such cash deposited with the Paying Agent shall amounts being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a2.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable after the Effective Time, Time (but in any no event no later than two Business Days after the third (3rd) Business Day thereafterEffective Time), the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the fifth Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or of Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a), without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest invest, on a daily basis, any cash included in the Exchange Payment Fund as directed by Parent, on provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or in money market funds having a daily basisrating in the highest investment category granted by a recognized credit rating agency at the time of investment. Any interest or other income resulting from such investments shall be paid to ParentParent or its designee, upon demand.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year six months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III II shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been exchanged prior to two years after the Effective Time (or immediately prior to such earlier date on which the related Merger Consideration would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration in respect thereof shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a2.1(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 2.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company) with a paying agent selected by Parent (that is reasonably satisfactory to the Company) to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the aggregate amount of Per Share Merger Consideration to which the stockholders of the Company shall become entitled pursuant to Section 2.1. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any 2.1 (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article II, except as provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Per Share Merger Consideration and other amounts contemplated by this Article II.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) second Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each holder record holder, as of record the Effective Time, of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Per Share Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal in customary form (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates and a duly completed and validly executed letter of transmittal to the Paying Agent, Agent and which letter shall be in customary form and contain with such other provisions as Parent or and the Paying Agent may Company shall reasonably specifyagree) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Per Share Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Per Share Merger Consideration for each Share formerly represented by such Certificate (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that delivers to the Paying Agent a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto (or such other evidence of transfer reasonably acceptable to the Paying Agent), a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Per Share Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Per Share Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Per Share Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Per Share Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a), without any interest thereon.
(e) All Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (New York City time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time (excluding any Dissenting Shares) multiplied by the Per Share Merger Consideration delivered (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(fg) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash into the Payment Fund in an amount that is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandParent or its designee.
(gh) Any portion of At any time following the Exchange Fund date that is 12 months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to Parent or its designee any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such Persons shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), ) only as general creditors thereof, for payment of the Merger Consideration thereof with respect to Shares formerly represented by such the Per Share Merger Consideration payable upon due surrender of their Certificate or Book-Entry ShareShares. The Surviving Corporation shall pay all charges and expenses, without interest.
(h) None including those of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person Agent, in respect connection with the exchange of cash from Shares for the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawPer Share Merger Consideration.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Per Share Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (TNS Inc)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable the Company's transfer agent to act as agent for the stockholders of the Company in connection with the Merger (the “"Paying Agent”)") to receive the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article II. On the day of (Promptly, and immediately following) in no event later than 1 Business Day after the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying AgentAgent (i) stock certificates representing Parent Shares and (ii) cash, in trust for each case in an aggregate amount equal to the benefit number of holders of Shares, an Parent Shares and amount of cash sufficient into which Company Shares have been converted in accordance with Section 2.1(a). Prior to deliver the Effective Time, Parent will provide to holders the Company written certification from the commitment parties under the Commitment Letters that they will release funds after the Effective Time. In addition, Parent shall deposit with the Paying Agent, as necessary from time to time at or after the Effective Time, cash in lieu of Shares the Merger Consideration to which they are entitled any fractional shares payable pursuant to Section 3.12.5 and any dividends or other distributions payable pursuant to Section 2.6. Any All Parent Shares, cash and dividends and distributions deposited with the Paying Agent pursuant to this Section 2.3(a) shall hereinafter be referred to as the “Exchange "Payment Fund.” ". The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article II, except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) fifth Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail be mailed to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Company Shares ("Company Certificates") that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates held by such Person person shall pass, only upon proper delivery of the Company Certificates to the Paying Agent, Agent and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (iiB) instructions for use in effecting the surrender of such Company Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)2.2. Upon surrender of a Company Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions theretoexecuted, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Company Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Company Share formerly represented by such Company Certificate or Book-Entry Share (subject to deduction for any required withholding Tax), and the such Company Certificate so surrendered shall forthwith be canceled. Promptly following the Effective Time (but in no event later than 5 Business Days following the Effective Time), to the extent consistent with the Paying Agent's standard procedures, Parent shall cause the Paying Agent to issue and deliver the Merger Consideration to holders of uncertificated Company Shares represented by book-entry (the "Book-Entry Company Shares") (either directly or through the Depository Trust Company), without each holder of Book-Entry Company Shares being required to deliver a Company Certificate or any executed letter of transmittal to the Paying Agent, and such Book-Entry Company Shares shall forthwith be cancelled. No interest will be paid or accrued on any Merger Consideration payable in respect to holders of Company Certificates or Book-Entry Company Shares. Payment In the event of Merger Consideration shall be made as promptly as practicable after a transfer of ownership of Company Shares that is not registered in the date of Proper Delivery transfer records of the applicable Certificate or Book-Entry Share.
(c) If payment of Company, the Merger Consideration is to may be made issued to a Person other than transferee if the Person in whose name Company Certificate representing such Company Shares is presented to the surrendered Certificate or Book-Entry Share is registeredPaying Agent, it shall be a condition of payment that accompanied by all documents required to evidence and effect such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other by evidence that any applicable stock transfer Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) paid. Until surrendered as contemplated by this Section 3.32.3, each Company Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration or the right to demand to be paid the "fair value" of the shares represented thereby as contemplated by Section 2.7, as applicable.
(c) At any time following the date that is 12 months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) that have been made available to the Paying Agent and that have not been disbursed to holders of Company Certificates and Book-Entry Company Shares and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the Merger Consideration payable in respect upon due surrender of Shares theretofore represented by such Certificate or their Company Certificates and Book-Entry Company Shares. The Surviving Corporation shall pay all charges and expenses, as applicableincluding those of the Paying Agent, pursuant to Section 3.1(a), without any interest thereonin connection with the exchange of Company Shares for the Merger Consideration.
(ed) All Merger Consideration delivered cash paid and Parent Shares issued upon the surrender for exchange of Company Certificates or Book-Entry Company Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares Company Shares, formerly represented by such Company Certificates or Book-Entry Company Shares. At After the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Company Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Company Shares, such Company Certificates or Book-Entry Company Shares shall be canceled and exchanged as for the consideration provided for, and in accordance with the procedures set forth in, this Article III, subject to applicable Law in the case of Dissenting SharesII.
(fe) The Paying Agent shall invest any the cash included in the Exchange Payment Fund as directed by Parent, Parent on a daily basis; provided that (i) no such investment or losses thereon shall affect the Merger Consideration payable to the holders of Company Shares and following any losses Parent shall promptly provide additional funds to the Paying Agent for the benefit of the stockholders of the Company in the amount of any such losses and (ii) such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Any interest or other income resulting from produced by such investments shall will be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only payable to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws)Parent, as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interestParent directs.
(hf) None of Parent, the Company, the Surviving Corporation, Corporation or the Paying Agent or any other Person person shall be liable to any Person person in respect of Parent Shares, any dividends or distributions with respect thereto, any cash in lieu of fractional shares or any cash from the Exchange Fund Payment Fund, in each case properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ig) If In the event that any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder's compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person the holder of a bond in such a reasonable and customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such the Company Certificate, the Paying Agent will deliver in exchange for such the lost, stolen or destroyed Company Certificate the applicable Merger Consideration payable in respect thereof of the Company Shares represented by such Company Certificate pursuant to this AgreementArticle II.
(jh) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a2.3(a) to pay for Company Shares for which appraisal rights have been perfected as described in Section 3.5 2.7 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Kratos Defense & Security Solutions, Inc.)
Exchange and Payment. (a) Prior At or prior to the Effective Acceptance Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On , in trust for the day benefit of (and holders of Shares immediately following) prior to the Effective TimeTime (other than holders to the extent they hold Excluded Shares or Dissenting Shares), Parent or Merger Sub cash in an amount sufficient to pay the aggregate Cash Consideration in accordance with Section 3.1(a) (such cash, the “Payment Fund”) and shall deposit (or cause to be deposited) with to the Paying Agent, Company cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver pay the aggregate consideration payable to holders of Shares Company Stock Options and Company RSUs in accordance with Section 3.2(a) and (b). Except as otherwise provided in this Agreement, the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as the “Exchange Fund.” The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle III.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Shares formerly represented by such Certificate (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share (subject to deduction for any required withholding Tax as described in Section 3.4), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the second Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to issue and send to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares and Dissenting Shares, a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicablethereof, pursuant to Section 3.1(a)this Article III, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund in money market mutual funds as directed by ParentXxxxxx, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand, and Parent shall make-up any shortfalls from losses.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year six months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III (except to the extent representing Excluded Shares or Dissenting Shares) shall thereafter look only to the Surviving Corporation as general creditors thereof for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Cash Consideration made available to the Paying Agent pursuant to Section 3.3(a3.1(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to Promptly after the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with American Stock Transfer & Trust Co, LLC , or such other bank or trust company mutually agreed to by Parent and the Paying Company (the “Exchange Agent”), in trust for the benefit of holders of Sharesthe Effective Time Holders, an amount of cash sufficient to deliver to holders of Shares representing the Merger Consideration to which they are entitled cash payable at Closing pursuant to Section 3.12.7(a) (other than cash payable in respect of Company Options (such cash “Option Consideration”). Any cash deposited with the Paying Agent The Surviving Corporation shall hereinafter be referred to serve as the “Exchange Fund.” The Exchange Fund paying agent for the Option Consideration that is payable in respect of Employee Options, and shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses cause such portion of the Paying AgentOption Consideration to be paid through the payroll of the Surviving Corporation through a special payroll within five Business Days following the Closing Date.
(b) As soon promptly as reasonably practicable after the Effective Time, Time (but in any no event no later than the third one (3rd1) Business Day thereafterfollowing the Closing Date), the Surviving Corporation shall, or shall cause the Paying Exchange Agent to to, mail or deliver to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that (“Certificates”) and whose Shares were converted into the right to receive the Merger Consideration with respect thereto pursuant to consideration described in Section 3.1(a2.7(a), (i) a form of letter of transmittal in the form attached as Exhibit H hereto (the “Letter of Transmittal”), which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon Only after surrender of a Certificate to the Paying Exchange Agent, together with such letter Letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal)Transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor an amount in cash to which such Stockholder shall have become entitled pursuant to the provisions of Section 2.7(a), and the Certificate(s) so surrendered shall forthwith be cancelled. Until surrendered as contemplated by this Section 2.9, each Certificate (other than Certificates representing Cancelled Shares or Dissenting Shares) shall be deemed, at any time after the Effective Time, to represent only the right to receive the portion of the Merger Consideration payable in respect of the Shares represented thereby, in cash, without interest. Notwithstanding the foregoing, if a Stockholder has delivered to the Exchange Agent at least two Business Days prior to the Closing Date a duly executed Letter of Transmittal and the Certificate(s) relating thereto, Parent shall cause such Stockholder’s Letter of Transmittal and Certificate(s) to be processed such that such holder is entitled Stockholder will be paid the payments provided in this Article II with respect to receive pursuant to Section 3.1(asuch Certificate(s) on the Closing Date.
(c) If payment in respect of the Shares represented by such any Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered such Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer transfer, that the signatures on such Certificate or such Book-Entry Share any related stock power shall be properly transferred guaranteed and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the The Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered issued and paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry SharesCertificates. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of any shares of capital stock of the Company thereafter on the stock transfer books records of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective TimeCompany. If, after the Effective Time, Certificates are a Certificate (other than one representing Cancelled Shares or Dissenting Shares) is presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Sharestransfer, such Certificates or Book-Entry Shares Certificate shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(ge) Any portion of the Exchange Fund funds (and including any interest or other income earned thereonreceived with respect thereto) that remains remain undistributed to the holders of Certificates or Book-Entry Shares one (1) year twelve months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws)Corporation, as general creditors thereof, for payment of the Merger Consideration (subject to abandoned property, escheat or other similar laws); provided, that any such portion of the Merger Consideration payable from the Adjustment Escrow Fund, the Indemnity Escrow Fund or the Holder Representative Fund shall be held and distributed to the Person(s) entitled thereto in accordance with respect the terms of this Agreement and the Escrow Agreement, as applicable, at the respective times and subject to Shares formerly represented by such Certificate the contingencies specified herein or Book-Entry Share, without interesttherein.
(hf) None To the fullest extent permitted by applicable Law, none of Parent, the Surviving Corporation, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Fund Merger Consideration properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ig) If In the event any Certificate Certificates shall have been lost, stolen or destroyed, upon Parent shall, or shall cause the making of an affidavitExchange Agent to deliver, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate certificates, upon the Merger Consideration payable in respect thereof making of an affidavit of that fact by the holder thereof, such consideration, if any, as may be required pursuant to this Agreement.
(j) Any portion of Article II in respect thereof; provided, however, that Parent may, in its discretion, or as required by the Merger Consideration made available Exchange Agent, and as a condition precedent to the Paying issuance thereof, require the Stockholder who is the owner of such lost, stolen or destroyed Certificate to deliver an indemnification agreement (but, for the avoidance of doubt, not a bond) against Parent, the Surviving Corporation, Merger Sub or the Exchange Agent pursuant with respect to Section 3.3(a) the Certificate alleged to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parentlost, upon demandstolen or destroyed.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement (in a form reasonably acceptable to the Company) with a such bank or trust company designated by Parent and reasonably acceptable to the Company to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the Offer Price and Merger Consideration to which stockholders of the Company shall become entitled pursuant to Section 1.1(e) and Section 3.1(a) and shall act as rights agent (in such capacity, the “Rights Agent”) under the CVR Agreement. On Immediately prior to the day of (and immediately following) the Effective Acceptance Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any cash deposited 1.1(e) and Section 3.1(a) (such cash, together with amounts payable pursuant to Section 3.2 with respect to any person not listed on Section 3.2(c) of the Paying Agent shall Company Disclosure Letter, being hereinafter be referred to as the “Exchange Payment Fund.” ”); provided that Parent shall not be required to deposit the funds related to the CVRs with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. The Exchange Payment Fund shall not be used for any purpose other than to fund payments due the aggregate Offer Price in the Offer and the aggregate Merger Consideration payable pursuant to Section 1.1(e), Section 3.1(a)) and, with respect to any person not listed on Section 3.2(c) of the Company Disclosure Letter, Section 3.2 in the Merger, except as provided in this Agreement. Parent or the Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the tender of Shares for the Offer Price and the exchange of Shares for the Merger Consideration and other amounts contemplated by Section 1.1(e) this Article III.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third fifth (3rd5th) Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to (i) in the case of each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant Consideration, to Section 3.1(a), mail (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be ) in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (iiB) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable and (ii) in the case of each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), to mail customary provisions regarding delivery of an “agent’s message” with respect thereto pursuant to Section 3.1(a)such Book-Entry Shares. Upon surrender of a Certificate or Book-Entry Shares to the Paying Agent, together with such letter of transmittal (orwith, in the case of a Book-Entry Sharecertificated Shares, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share Shares shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of for the Shares formerly represented by such Certificate or Book-Entry Share Shares (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share, and the Certificate and Book-Entry Shares so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share and shall be properly transferred transferred, and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicablethereof, pursuant to Section 3.1(a)this Article III, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by ParentXxxxxx, on a daily basis. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 3.4), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid to the property of, and shall be payable to, Parent, upon demand.
(g) Any portion of At any time following the Exchange Fund date that is twelve (and any interest or other income earned thereon12) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year months after the Effective Time Time, Parent shall be delivered entitled to Parent, upon demandrequire the Paying Agent to deliver to it or its designee any funds (including any interest received with respect thereto) which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates, and any thereafter such holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter be entitled to look only to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration payable upon due surrender of their Certificate. Parent shall, or shall cause the Surviving Corporation to, pay all charges and expenses, including those of the Paying Agent, in connection with respect to the exchange of Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) for the Merger Consideration. None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by the Company’s stockholders at such date as is immediately prior to the time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall, to the extent permitted by applicable Laws, become the property of the Surviving Corporation, free and clear of any claims or interests of any such stockholders or their successors, assigns or personal representatives previously entitled thereto.
(ih) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance including, if reasonably acceptable to Parent), of that fact required by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying AgentSurviving Corporation, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(ji) Any portion Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Merger Consideration made available Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 3.3(a3.1(a).
(j) Prior to pay for the Effective Time, each of Parent and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of Shares for which appraisal rights have been perfected as described in Section 3.5 (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (ii) the Merger Consideration.
(k) The stock transfer books of the Company shall be returned closed immediately upon the Effective Time, and there shall be no further registration of transfers of Shares thereafter on the records of the Company. At or after the Effective Time, the Certificates or Book-Entry Shares shall, subject to Parentcompliance with the provisions of this Article III by the holder thereof and subject to Section 3.4, upon demandrepresent only the right to receive the Merger Consideration with respect to the Shares formerly represented thereby.
Appears in 1 contract
Exchange and Payment. (a) Prior to At or immediately after the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares, cash in an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled pursuant to in accordance with Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as 2.1(a) (such cash, the “Exchange Payment Fund.” The Exchange ”). Except as otherwise provided in this Agreement, the Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle II.
(b) As soon as reasonably practicable after the Effective Time, Time (but in any no event no later than the third (3rd) three Business Day Days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify, subject to the Company’s reasonable approval) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate, and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the third Business Day thereafter, Parent shall cause the Paying Agent to issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either Tax has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, thereof pursuant to Section 3.1(a)this Article II, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand. Parent and the Surviving Corporation shall promptly replace any funds deposited with the Paying Agent lost through any investment made pursuant to this Section 2.3(f). Nothing contained herein and no investment losses resulting from investment of the Payment Fund shall diminish the rights of any holder of Certificates and/or Book-Entry Shares to receive Merger Consideration.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year six months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation as general creditors thereof for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) . None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ih) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(ji) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a2.1(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 2.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective TimeClosing, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company) with a paying agent selected by Parent (that is reasonably satisfactory to the Company) to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”) to receive the aggregate amount of Per Share Merger Consideration to which the stockholders of the Company shall become entitled pursuant to Section 2.1(a). On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any 2.1(a) (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a2.1(a), except as provided in this Agreement. Parent shall pay (or cause to be paid) all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Per Share Merger Consideration and other amounts contemplated by this Article II.
(b) As soon as reasonably practicable Prior to, on or promptly after the Effective Time, but and in any event no not later than the third second (3rd2nd) Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each holder record holder, as of record immediately prior to the Effective Time, of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”Certificate(s) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Per Share Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal in such form as Parent and the Company shall reasonably agree (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates and a duly completed and validly executed letter of transmittal to the Paying Agent, Agent and which letter shall be in customary form and contain have such other provisions as Parent or and the Paying Agent may Company shall reasonably specifyagree) and (ii) instructions (in such form as Parent and the Company shall reasonably agree) for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Per Share Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent may reasonably require (a “Proper Delivery”)to evidence ownership, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor a check or wire transfer for the amount of cash equal to the Per Share Merger Consideration for each Share formerly represented by such Certificate (subject to deduction for any required withholding Tax) within five (5) Business Days of receipt by the Paying Agent of such Certificate, and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the second (2nd) Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder as of immediately prior to the Effective Date of outstanding Book-Entry Shares that delivers to the Paying Agent a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto (or such other evidence of transfer reasonably acceptable to the Paying Agent), a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Per Share Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Per Share Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Per Share Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Per Share Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a), without any interest thereon.
(e) All Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (New York City time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time (excluding any Dissenting Shares) multiplied by the Per Share Merger Consideration delivered (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first (1st) Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(fg) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America, or in short-term commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively; provided, however, that Parent shall take all actions necessary to ensure that the Payment Fund includes at all times cash sufficient to satisfy Parent’s obligation under this Article II. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandParent or its designee.
(gh) Any portion of At any time following the Exchange Fund date that is 12 months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to Parent or its designee any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed have been made available to the Paying Agent and which have not been claimed by holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such Persons shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), and Parent and the Surviving Corporation shall remain liable, only as general creditors thereof, for payment of the Merger Consideration thereof with respect to Shares formerly represented by such the Per Share Merger Consideration payable upon due surrender of their Certificate (or affidavit in lieu thereof as provided in Section 2.3(j)) or Book-Entry Share, without interestShares.
(hi) None Any portion of Parent, the Per Share Merger Consideration made available to the Paying Agent pursuant to Section 2.3(a) to pay for Dissenting Shares for which appraisal rights have been perfected in accordance with Section 2.5 shall be returned to the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawupon demand.
(ij) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed record holder thereof and, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Per Share Merger Consideration payable in respect thereof pursuant to this Agreement.
(jk) Any portion None of Parent, Merger Sub, the Company or the Paying Agent, or any employee, officer, director, agent or Affiliate thereof, shall be liable to any Person in respect of any cash from the Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate has not been surrendered prior to five (5) years after the Effective Time (or immediately prior to such earlier date on which the Per Share Merger Consideration made available in respect of such Certificate would otherwise escheat to or become the property of any Governmental Entity), any such cash in respect of such Certificate shall, to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to extent permitted by applicable Law, become the property of Parent, upon demandfree and clear of all claims or interest of any person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Affinity Gaming)
Exchange and Payment. (a) Prior to At or before the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares, an amount of cash sufficient Shares immediately prior to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose Effective Time (other than holders to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.extent they hold Excluded Shares or Dissenting
(b) As soon as reasonably practicable after the Effective Time, Time (but in any event no not later than the third (3rd) Business Day thereafter), the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Shares formerly represented by such Certificate (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share (subject to deduction for any required withholding Tax and the other terms of this Agreement), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to issue and send to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares and Dissenting Shares, a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Timemailing of the Proxy Statement, Parent and Merger Sub the Company shall appoint the Exchange Agent and enter into an agreement Exchange Agent Agreement with a bank or trust company designated by the Exchange Agent in form and substance reasonably satisfactory to Parent and reasonably acceptable to the Company (the “Paying AgentExchange Agent Agreement”). On the day of (and immediately following) the Effective TimeClosing Date, Parent shall deposit, or Merger Sub shall deposit (or cause to be deposited) , with the Paying Exchange Agent, in trust for the benefit of holders the Company Holders and Noteholders, for exchange in accordance with this Article II, a number of Sharesvalidly issued, an amount fully paid and nonassessable shares of cash sufficient Parent Common Stock equal to deliver to holders the Closing Transaction Consideration and Promissory Notes Consideration (such certificates for shares of Shares the Merger Consideration to which they are entitled Parent Common Stock, together with any dividends or distributions with respect thereto pursuant to Section 3.1. Any 2.3(d) and any cash deposited with the Paying Agent shall in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f), being hereinafter be referred to as the “Exchange Fund.” ”). For the purposes of such deposit, Parent shall assume that there will not be any fractional shares of Parent Common Stock. Parent shall make available to the Exchange Agent, for addition to the Exchange Fund, from time to time as needed, cash sufficient to pay (i) any dividends or distributions payable pursuant to Section 2.3(d), and (ii) cash in lieu of fractional shares in accordance with Section 2.3(f). The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to as set forth in Section 3.1(a2.3(i), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, Parent shall direct the Surviving Corporation shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right Company Holder entitled to receive a portion of the Merger Consideration with respect thereto pursuant to Section 3.1(a)2.1 and each Noteholder entitled to receive a portion of the Promissory Notes Consideration pursuant to Section 2.1, the Note Purchase Agreement and the Promissory Notes (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or Parent, the Paying Company and the Exchange Agent may shall reasonably specifyagree upon prior to the Effective Time) and (ii) instructions for use in effecting delivering the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a and surrendering any applicable Promissory Notes or Certificate or transferring any applicable Book-Entry Share, upon as the case may be, in exchange for a portion of the Merger Consideration, any dividends or other distributions payable pursuant to Section 2.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f). Upon delivery of such letter of transmittal), transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require require, (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share i) each Company Holder shall be entitled to receive in exchange therefor (A) the portion of the Merger Consideration that such holder to which he, she or it is entitled, (B) any dividends or other distributions payable pursuant to Section 2.3(d) and (C) any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f) and (ii) each Noteholder shall be entitled to receive in exchange therefor (A) the portion of the Promissory Notes Consideration to which he, she or it is entitled, (B) any dividends or other distributions payable pursuant to Section 3.1(a2.3(d) and (C) any cash in respect lieu of the Shares represented fractional shares of Parent Common Stock payable pursuant to Section 2.3(f). Until delivery of a duly completed and validly executed letter of transmittal as contemplated by such this Section 2.3(b) and surrender of any applicable Promissory Notes or Certificate or transfer of any applicable Book-Entry Share and Share, as the Certificate so surrendered case may be, (i) each share of Company Common Stock shall forthwith be canceled. No interest will be paid or accrued on any deemed after the Effective Time to represent only the right to receive a portion of the Merger Consideration payable in respect thereof, any dividends or other distributions payable pursuant to Section 2.3(d) and any cash in lieu of Certificates or Book-Entry Shares. Payment fractional shares of Merger Consideration Parent Common Stock payable pursuant to Section 2.3(f) and (ii) each Promissory Note shall be made as promptly as practicable deemed after the date of Proper Delivery Effective Time to represent only the right to receive a portion of the applicable Certificate Promissory Notes Consideration payable in respect thereof, any dividends or Book-Entry Shareother distributions payable pursuant to Section 2.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f).
(c) If payment of a portion of the Merger Consideration or Promissory Notes Consideration, as applicable, is to be made to a Person other than the Person in whose name the surrendered Certificate shares of Company Common Stock are registered or Book-Entry Share is registeredthe Promissory Notes are issued, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed shares of Company Common Stock or shall be otherwise in proper form for transfer or such Book-Entry Share Promissory Notes shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes similar taxes required by reason of the payment of a portion of the Merger Consideration or Promissory Notes Consideration, as applicable, to a Person other than the registered holder of such shares of Company Common Stock or Promissory Notes, as the Certificate or Book-Entry Share surrendered case may be, or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate No dividends or Book-Entry Share shall be deemed at any time other distributions with respect to shares of Parent Common Stock with a record date after the Effective Time shall be paid to represent only the holder of any unsurrendered Certificate or Promissory Note or untransferred Book-Entry Share, as the case may be, with respect to the Parent Common Stock that such holder has the right to receive the Merger Consideration payable pursuant to Section 2.1(a), and no cash payment in respect lieu of Shares theretofore represented by fractional shares of Parent Common Stock shall be paid to any such holder pursuant to Section 2.3(f), in each case until such holder shall deliver a duly completed and validly executed letter of transmittal and surrender any applicable Certificate or Promissory Note or transfer any applicable Book-Entry SharesShare, as applicablethe case may be, in accordance with this Article II. Following the delivery of a letter of transmittal in accordance with this Article II, subject to the effect of escheat or other applicable Laws, there shall be paid to the record holder of the Company Common Stock or Noteholder covered thereby, without interest, (i) promptly after such delivery, the amount of any dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock and the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 3.1(a)2.3(f) and (ii) at the appropriate payment date, without any interest thereonthe amount of dividends or other distributions with a record date after the Effective Time but prior to such delivery and a payment date subsequent to such delivery payable with respect to such whole shares of Parent Common Stock.
(e) All The Merger Consideration delivered Consideration, any dividends or other distributions payable pursuant to Section 2.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f) issued and paid upon the surrender delivery for exchange of Certificates or Book-Entry Shares shares of Company Common Stock in accordance with the terms of this Article III II shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Certificates or Book-Entry Sharesoutstanding. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation shares of the Shares Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates shares of Company Common Stock are presented to the Surviving Corporation Parent or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Sharestransfer, such Certificates or Book-Entry Shares shares of Company Common Stock shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(f) The Paying Agent Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Parent Common Stock shall invest any cash included in be issued upon the Exchange Fund as directed by Parentdelivery for exchange of shares of Company Capital Stock or Promissory Notes, on a daily basis. Any interest no dividends or other income resulting from such investments distributions with respect to shares of Parent Common Stock shall be paid payable on or with respect to Parentany such fractional share, upon demandand such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent or member of Surviving Corporation. In lieu of the issuance of any such fractional share, Parent shall pay to each former Company Holder or Noteholder who otherwise would be entitled to receive a fractional share of Parent Common Stock an amount in cash (without interest) determined by multiplying (i) the fraction of a share of Parent Common Stock which such holder would otherwise be entitled to receive (taking into account all shares of Company Capital Stock and interests under the Promissory Notes held at the Effective Time by such Company Holder or Noteholder and rounded to the nearest thousandth when expressed in decimal form) pursuant to this Article II by (ii) $10.00.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates former Company Holders or Book-Entry Shares one (1) year Noteholders six months after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III remaining Company Holders and Noteholders shall thereafter look only to Parent, as general creditors thereof, for payment of any portion of the Surviving Corporation Merger Consideration, any portion of the Promissory Notes Consideration, any unpaid dividends or other distributions payable pursuant to Section 2.3(d) and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 2.3(f) (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment . Any portion of the Merger Consideration with respect Exchange Fund remaining unclaimed by any Company Holders or Noteholders as of a date which is immediately prior to Shares formerly represented such time as such amounts would otherwise escheat to or become property of any Governmental Authority shall, to the extent permitted by such Certificate applicable Law, become the property of Parent, free and clear of any claims or Book-Entry Share, without interestinterest of any Person previously entitled thereto.
(h) None of Parent, the Surviving Corporation, the Paying Exchange Agent or nor any other Person shall be liable to any Person in respect of shares of Parent Common Stock (or any dividends or other distributions with respect thereto or cash in lieu of fractional shares of Parent Common Stock) or cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent on a daily basis; provided, that no investment gain or loss thereon shall affect the amounts payable to the Company Holders or Noteholders pursuant to this Article II; provided, further, that any investment of such cash shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government, in commercial paper rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1.0 billion (based on the most recent financial statements of such bank that are then publicly available). Any interest and other income resulting from such investments shall be paid to Parent. If for any reason (including losses) the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, Parent shall promptly deposit cash in the Exchange Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such payment obligations.
(j) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agentdestroyed, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver issue in exchange for such lost, stolen or destroyed Certificate Certificate, the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available that such holder is otherwise entitled to receive pursuant to, and in accordance with, the Paying Agent pursuant to provisions of Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand2.1(b).
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company) with the Company’s transfer agent to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article II. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any 2.1 (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article II, except as provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other amounts contemplated by this Article II.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) second Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an Shares that were outstanding certificate and represented by one or outstanding more certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that and were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or of the Paying Agent may reasonably specifyas agreed to by Parent and shall include a customary waiver of rights as a former equityholder of the Company) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate (without interest and subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be canceled. Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of uncertificated Shares that were outstanding and represented by book entry immediately prior to the Effective Time (“Book-Entry Shares”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person (as defined below) other than the Person in whose name the any Share represented by any surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Share represented by such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a), without any interest thereon.
(e) All Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration delivered (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed with respect to the Shares outstanding immediately prior to the Effective Time and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(fg) The Paying Agent shall not invest any cash included in the Exchange Payment Fund as unless otherwise directed by Parent; provided, on a daily basisthat any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A1 or P1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to satisfy fully all of the payment obligations to be made in cash by the Paying Agent hereunder, Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency of cash required to satisfy fully such cash payment obligations. Any interest or and other income resulting from such investments shall be paid for the sole benefit of the Surviving Corporation and shall be payable to Parent, upon demandthe Surviving Corporation.
(gh) Any portion of At any time following the Exchange Fund date that is one year after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to former holders of Shares represented by Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such payable upon due surrender of their Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawShares.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Forterra, Inc.)
Exchange and Payment. (a) Prior to the Company Merger Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company) with the Company’s transfer agent to act as agent for (x) the stockholders of the Company in connection with the Company Merger and (y) the holders of LLC Units (other than the Company) in connection with the LLC Merger (the “Paying Agent”)) to receive the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article II and the LLC Merger Consideration to which holders of LLC Units shall become entitled pursuant to this Article II. On At or promptly following the day of (and immediately following) Company Merger Effective Time on the Effective TimeClosing Date, Parent or Merger Sub shall deposit (or cause to be deposited, including by causing the Company to deposit) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any this Article II (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)this Article II, except as provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares and LLC Units for the Merger Consideration and LLC Merger Consideration and other amounts contemplated by this Article II.
(b) As soon as reasonably practicable Promptly after the Company Merger Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafterfollowing the Company Merger Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to (x) each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Company Merger Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a)(i), and (y) each holder of LLC Certificates that immediately prior to the LLC Merger Effective Time represented outstanding LLC Units that were converted into the right to receive the LLC Merger Consideration with respect thereto pursuant to Section 2.1(b)(ii), (i) a form of letter of transmittal in customary form of the Paying Agent (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates and LLC Certificates held by such Person shall pass, only upon proper delivery of the Certificates and LLC Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares and LLC Certificates in exchange for the Merger Consideration or LLC Merger Consideration, as applicable, payable with respect thereto pursuant to Section 3.1(a2.1(a)(i) and Section 2.1(b)(ii). Upon surrender of a Certificate or LLC Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share LLC Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate or the LLC Merger Consideration for each LLC Unit formerly represented by such LLC Certificate (in each case, subject to deduction for any required withholding Tax), and the Certificate or LLC Certificate so surrendered shall forthwith be cancelled. Promptly after the Company Merger Effective Time and in any event not later than the third Business Day following the Company Merger Effective Time, the Paying Agent shall issue and deliver to each holder of (x) uncertificated Shares represented by book entry (“Book-Entry Shares”) and (y) Book-Entry Units, a letter of transmittal in customary form of the Paying Agent. Upon delivery to the Paying Agent of such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, the holder of such Book-Entry Shares or Book-Entry Units shall be entitled to receive in exchange therefor, by a check or wire transfer, the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a)(i) in respect of the Shares represented by such Certificate or Book-Entry Share Shares or pursuant to Section 2.1(b)(ii) in respect of such Book-Entry Units, without such holder being required to deliver a Certificate or LLC Certificate to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares and Book-Entry Units shall forthwith then be canceled. No interest will be paid or accrued for the benefit of holders of (x) Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate Shares or (y) LLC Certificates or Book-Entry ShareUnits on the LLC Merger Consideration payable in respect of LLC Certificates or Book-Entry Units.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) If payment of the LLC Merger Consideration is to be made to a Person other than the Person in whose name the surrendered LLC Certificate or Book-Entry Unit is registered, it shall be a condition of payment that such LLC Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Unit shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the LLC Merger Consideration to a Person other than the registered holder of the LLC Certificate or Book-Entry Unit surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(e) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Company Merger Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a)(i), without any interest thereon.
(ef) Until surrendered as contemplated by this Section 2.3, each LLC Certificate or Book-Entry Unit shall be deemed at any time after the LLC Merger Effective Time to represent only the right to receive the LLC Merger Consideration payable in respect of LLC Units theretofore represented by such LLC Certificate or Book-Entry Units, as applicable, pursuant to Section 2.1(b)(ii), without any interest thereon.
(g) Prior to the Company Merger Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Company Merger Effective Time multiplied by the Merger Consideration (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first business day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(h) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Company Merger Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Company Merger Effective Time. If, after the Company Merger Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(fi) All cash paid upon the surrender for exchange of LLC Certificates or Book-Entry Units in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the LLC Units formerly represented by such LLC Certificates or Book-Entry Units. At the LLC Merger Effective Time, the unit transfer books of Group LLC shall be closed and there shall be no further registration of transfers on the unit transfer books of the Surviving Company of the LLC Units that were outstanding immediately prior to the LLC Merger Effective Time. If, after the LLC Merger Effective Time, LLC Certificates are presented to the Surviving Company or the Paying Agent for transfer or transfer is sought for Book-Entry Units, such LLC Certificates or Book-Entry Units shall be canceled and exchanged as provided in this Article II.
(j) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Corporation.
(gk) Any portion of At any time following the Exchange Fund date that is 12 months after the Company Merger Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates Certificates, LLC Certificates, Book-Entry Shares or Book-Entry Shares one (1) year after the Effective Time Units and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such or the LLC Merger Consideration, as applicable payable upon due surrender of their Certificate or Book-Entry ShareShares or LLC Certificates or Book-Entry Units. The Surviving Corporation shall pay all charges and expenses, without interestincluding those of the Paying Agent, in connection with the exchange of Shares for the Merger Consideration and LLC Units for the LLC Merger Consideration.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(il) If any Certificate or LLC Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate or LLC Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate or LLC Certificate the Merger Consideration or LLC Merger Consideration, as applicable, payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
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Exchange and Payment. (a) Prior to Promptly after the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with American Stock Transfer & Trust Company, LLC, a New York limited liability trust company, or such other bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”), in trust for the benefit of holders of shares of Company Stock, book-entry shares (or certificates if requested) representing the shares of Parent Common Stock issuable at the Closing pursuant to Section 2.7(a). On In addition, Parent shall make available by depositing with the day of (and immediately following) Exchange Agent, as necessary from time to time after the Effective Time, any cash in lieu of fractional shares of Parent or Merger Sub Common Stock payable pursuant to Section 2.11(f).
(b) Promptly following Parent’s delivery of the Earnout Consideration Statement pursuant to Section 2.8(b), Parent shall deposit (or cause to be deposited) with the Paying Exchange Agent, in trust for the benefit of holders of Sharesshares of Company Stock, an amount book-entry shares (or certificates if requested) representing the shares of cash sufficient to deliver to holders Parent Common Stock issuable in connection with the satisfaction of Shares the Merger Consideration to which they are entitled any Earnout Amount owed pursuant to Section 3.12.8(b). Any cash deposited In addition, Parent shall make available by depositing with the Paying Agent shall hereinafter be referred Exchange Agent, as necessary from time to as time after the “Exchange Fund.” The Exchange Fund shall not be used for determination of the Earnout Amount and the delivery of the Earnout Consideration Statement, any purpose other than to fund payments due cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.1(a2.11(f), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(bc) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall, or shall cause the Paying Exchange Agent to to, mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), shares of Company Stock (ix) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify, including a general release of the Company, the Surviving Corporation and Parent by each Holder (other than currently unknown claims by a third party publisher that is also a Holder under commercial Contracts with the Company) and (iiy) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration (either the Closing Consideration and/or the Earnout Amount, as applicable) and any cash in lieu of fractional shares of Parent Common Stock payable with respect thereto pursuant to Section 3.1(a2.11(f). Upon Only after surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration (A) that number of whole shares of Parent Common Stock (after taking into account all shares of Company Stock then held by such holder is under all Certificates so surrendered) to which such holder of Company Stock shall have become entitled pursuant to receive the provisions of Section 2.7(a) (in the case of the Closing Consideration) and, if and when earned, Section 2.8 (in the case of the Earnout Amount) (which, in each case, shall be in uncertificated book-entry form) and (B) any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share 2.11(f), and the Certificate so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any cash in lieu of fractional shares, if any, payable to holders of Certificates. Until surrendered as contemplated by this Section 2.11, each Certificate shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof and any cash in lieu of Certificates or Book-Entry Sharesfractional shares of Parent Common Stock payable pursuant to Section 2.11(f). Payment For the avoidance of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery doubt and in furtherance of the applicable Certificate or Book-Entry Shareforegoing, the parties acknowledge and agree that the mechanics set forth in this Section 2.11(c) shall apply for both the payment and satisfaction of the Closing Consideration and, to the extent earned pursuant to Section 2.8, the Earnout Amount, and that all holders of Company Stock will be sent a letter of transmittal at the Effective Time with all shares of Company Stock being cancelled as of the Effective Time and representing only the right to receive the Closing Consideration and, to the extent earned pursuant to Section 2.8, the Earnout Amount.
(cd) If payment of any of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(de) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the The Merger Consideration and any cash in lieu of fractional shares of Parent Common Stock payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e2.11(f) All Merger Consideration delivered issued and paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares shares of Company Stock formerly represented by such Certificates or Book-Entry SharesCertificates. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation shares of the Shares Company Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Sharestransfer, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(f) The Paying Agent No fractions of a share of Parent Common Stock shall invest any cash included be issued in the Exchange Fund as directed by ParentMerger, on but in lieu thereof each Holder otherwise entitled to a daily basis. Any interest or other income resulting from such investments shall be paid to Parentfraction of a share of Parent Common Stock shall, upon demandsurrender of his or her Certificate or Certificates pursuant to Section 2.11(b) and the determination of the amount of Merger Consideration payable to such Holder (i.e., only after the Earnout Amount is determined in the case of the Earnout Amount), be entitled to receive an amount of cash (without interest) determined (i) in the case of the Closing Consideration, by multiplying the Average Price by the fractional share interest to which such Holder would otherwise be entitled, and (ii) in the case of the Earnout Amount, if and when earned, by multiplying the Earnout Average Price by the fractional share interest to which such Holder would otherwise be entitled.
(g) Any portion shares of the Exchange Fund (and any interest or other income earned thereon) Parent Common Stock that remains remain undistributed to the holders of Certificates or Book-Entry Shares one (1i) year six (6) months after the Effective Time Time, in the case of the Closing Consideration, and (ii) six (6) months after the date of the Earnout Consideration Statement, in the case of the Earnout Amount, shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws)Corporation, as general creditors thereof, for payment of the Merger Consideration with respect and any cash in lieu of fractional shares of Parent Common Stock payable pursuant to Shares formerly represented by such Certificate Section 2.11(f) (subject to abandoned property, escheat or Book-Entry Share, without interestother similar laws).
(h) None of Parent, the Surviving Corporation, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of shares of Parent Common Stock or cash from the Exchange Fund in lieu of fractional shares of Parent Common Stock properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate Any certificates evidencing shares of Parent Common Stock delivered hereunder shall have been lostinclude legends legally required, stolen or destroyedincluding a legend substantially in the following form: “THE TRANSFERABILITY OF THESE SECURITIES IS SUBJECT TO RESTRICTION. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY BE REOFFERED AND SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO CONTRACTUAL LIMITATIONS ON RESALE, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this AgreementINCLUDING CERTAIN LOCKUP RESTRICTIONS.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.”
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Acceptance Time, Parent and Merger Sub shall enter into an agreement with designate a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”) to act as agent for the holders of Shares to receive the funds to which holders of such Shares shall become entitled pursuant to Section 1.1(c) and to act as agent for the holders of Shares to receive the funds to which holders of such shares shall become entitled pursuant to Section 3.1(a). On The Paying Agent agreement pursuant to which Parent shall appoint the day Paying Agent shall be in form and substance reasonably acceptable to the Company. Parent shall pay, or shall cause to be paid, all charges and expenses, including those of (and immediately following) the Effective Paying Agent, in connection with the exchange of Shares contemplated by this Article III. At or promptly following the Acceptance Time, Parent shall deposit, or Merger Sub shall deposit (or cause to be deposited) , with the Paying Agent, in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders make payment of Shares the Merger Consideration to which they are entitled cash consideration payable pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as 1.1(c) and Section 3.1(a) (together, the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any other purpose other than to fund payments due pursuant to Section 3.1(a), except as otherwise provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable after the Effective Time, but Time (and in any no event no later than two Business Days after the third (3rd) Business Day thereafterEffective Time), the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Shares formerly represented by such Certificate (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share, and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the third Business Day thereafter, Parent and the Surviving Corporation shall cause the Paying Agent to issue and send to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares and Dissenting Shares, a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledautomatically cancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent the Paying Agent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicablethereof, pursuant to Section 3.1(a)this Article III, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by ParentXxxxxx, on a daily basis; provided that (i) no such investment will relieve Parent or the Paying Agent from making the payments required by this Article III and (ii) no such investment will have maturities that could prevent or delay payments to be made pursuant to this Agreement. Any interest or other income resulting from such investments shall be paid to Parent, upon demand. No loss incurred with respect to such investments will decrease the amounts payable pursuant to this Agreement. In the event that the amount of cash held by the Paying Agent is insufficient to pay the aggregate cash consideration payable pursuant to Section 1.1(c) and Section 3.1(a), Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount which is equal to the deficiency in the amount required to make all such payment pursuant to Section 1.1(c) and Section 3.1(a).
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any portion of the Payment Fund remaining unclaimed by holders at such time at which such amounts would otherwise escheat to or become the property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(ih) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(ji) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a3.1(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand; provided that the parties hereto acknowledge that, notwithstanding anything to the contrary in this Agreement, Parent shall not be required under this Section 3.3 or otherwise to deposit with the Paying Agent any cash to pay Merger Consideration with respect to Shares as to which its holder has purported to deliver a notice or demand of appraisal that has not been withdrawn prior to the Closing Date.
(j) Any portion of the Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares six months after the Effective Time shall be delivered to Parent or its designated Affiliate, upon demand, and any remaining holders of Certificates or Book-Entry Shares (except to the extent representing Excluded Shares or Dissenting Shares) shall thereafter look only to Parent and the Surviving Corporation as general creditors thereof for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Laws), without interest.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective TimeClosing, Parent Xxxxxx and Merger Sub Saturn shall enter into an agreement with jointly appoint a bank or trust company designated by Parent and reasonably acceptable to act as exchange agent for the Company payment of the Merger Consideration (the “Paying Exchange Agent”). On the day of (and immediately following) Prior to the Effective Time, Parent or and prior to filing the Certificate of First Merger Sub with the Secretary of State of the State of Delaware, Xxxxxx shall deposit (or cause to be deposited) book-entry shares of Xxxxxx Common Stock representing the aggregate Merger Consideration with the Paying Exchange Agent, in trust for the benefit of holders of Shares, an amount record of cash sufficient shares of Saturn Common Stock to deliver be converted into the right to holders of Shares receive the Merger Consideration to which they are entitled pursuant to Section 3.12.1(b). Any cash In addition, Xxxxxx shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time, any dividends or distributions payable pursuant to Section 2.2(e). In the event such deposit shall be insufficient to make payments, Xxxxxx shall promptly deposit, or cause to be deposited, additional book-entry shares of Xxxxxx Common Stock or funds, as applicable, with the Exchange Agent in an amount which is equal to the deficiency in the amount required to make such payment. All book-entry shares of Xxxxxx Common Stock, dividends and distributions deposited with the Paying Exchange Agent shall hereinafter be are referred to in this Agreement as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)2.1 and Section 2.2, except as expressly provided for in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable Promptly after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Xxxxxx shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) ), and may cause the Exchange Agent to mail to each holder of uncertificated Shares represented by book a book-entry share (“Book-Entry Shares”) ), in each case that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), shares of Saturn Common Stock (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, or in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal, and which letter shall be in customary form and contain such other provisions as Parent or Xxxxxx, Saturn and the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(b) and any dividends or other distributions payable pursuant to Section 2.2(e) (which instructions shall be in customary form and contain such other provisions as Xxxxxx, Saturn and the Exchange Agent may reasonably specify). Upon With respect to holders of Saturn Book-Entry Shares, the parties shall cooperate to establish procedures with the Exchange Agent to allow the Exchange Agent to transmit, following the Effective Time, to such holders or their nominees, upon surrender of Saturn Common Stock, the Merger Consideration and any dividends or distributions, in each case, to which such holders are entitled pursuant to the terms of this Agreement.
(c) Each holder of shares of Saturn Common Stock that have been converted into a right to receive the Merger Consideration pursuant to Section 2.1(b), upon proper surrender of a Certificate or Book-Entry Shares to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor (i) the Merger Consideration that number of shares of Xxxxxx Common Stock to which such holder is of Saturn Common Stock shall have become entitled pursuant to receive the provisions of Section 2.1(b) (as modified by Section 2.1(e), if applicable) (which shall be in uncertificated book-entry form), and (ii) an amount (if any) in immediately available funds, after giving effect to any required Tax withholdings as provided in Section 2.5) of any dividends or other distributions payable pursuant to Section 3.1(a) in respect of 2.2(e), and the Shares represented by such Certificate or Book-Entry Share and the Certificate Shares so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration Consideration, or any unpaid dividends and distributions, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration Xxxxxx shall be made cause the Exchange Agent to make all payments required pursuant to the preceding sentence as promptly soon as practicable after following the date valid surrender of Proper Delivery of the applicable Certificates or Book-Entry Shares. Until surrendered as contemplated by this Section 2.2, each Certificate or Book-Entry ShareShare shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable pursuant to Section 2.1(b) (as modified by Section 2.1(e), if applicable) in respect thereof and any dividends or other distributions payable pursuant to Section 2.2(e), but shall not entitle its holder or any other Person to any rights as a stockholder of Saturn or Xxxxxx.
(cd) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent Xxxxxx and the Exchange Agent that such tax either has been paid or Tax is not applicable.
(de) Until surrendered as contemplated by this Section 3.3, each No dividends or other distributions with respect to Xxxxxx Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate or Book-Entry Share shall be deemed at any time after with respect to the Effective Time to represent only shares of Xxxxxx Common Stock that the holder thereof has the right to receive upon the Merger Consideration payable in respect of Shares theretofore represented by surrender thereof, until the holder thereof shall surrender such Certificate or Book-Entry SharesShare in accordance with this Article II. Following the proper surrender of a Certificate or Book-Entry Share in accordance with this Article II, there shall be paid to the record holder thereof, without interest, in addition to the Merger Consideration, (i) promptly following such surrender, the amount of any dividends or other distributions with a record date after the Effective Time and payment date on or prior to the date of such surrender in respect of the whole shares of Xxxxxx Common Stock issued as applicableMerger Consideration in exchange for such surrender and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but with a payment date subsequent to such surrender in respect of the shares of Xxxxxx Common Stock issued as Merger Consideration in exchange for such surrender. For purposes of dividends and other distributions in respect of the Xxxxxx Common Stock, the Xxxxxx Common Stock to be issued as Merger Consideration shall be entitled to dividends and other distributions pursuant to this Section 2.2(e) as if issued and outstanding as of the Effective Time.
(f) The Merger Consideration and any dividends or other distributions payable pursuant to Section 3.1(a), without any interest thereon.
(e2.2(e) All Merger Consideration delivered issued and paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares shares of Saturn Common Stock formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company Saturn shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation shares of the Shares Saturn Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer transfer, or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demandII.
(g) Any portion of the Exchange Fund (and including any interest or other income earned thereonon the Exchange Fund) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or and other similar LawsLaw), as general creditors thereof, for payment of the Merger Consideration with respect and any unpaid dividends or other distributions payable pursuant to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) Section 2.2(e). None of ParentXxxxxx, the Surviving Corporation, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund shares of Xxxxxx Common Stock, dividends or other distributions with respect thereto properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any portion of the Exchange Fund that remains undistributed to the holders of Certificates or Book-Entry Shares immediately prior to the time at which the Exchange Fund would otherwise escheat to, or become property of, any Governmental Entity, shall, to the extent permitted by Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Xxxxxx; provided that (i) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (ii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent)Xxxxxx and the Exchange Agent, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent Xxxxxx or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent Xxxxxx or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent and any dividends or other distributions payable pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand2.2(e).
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Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement (in form and substance reasonably acceptable to the Company) with a reputable bank or trust company designated by Parent and reasonably acceptable to the Company (which may be the Company’s transfer agent) to act as paying agent in connection with the Merger (the “Paying Agent”). On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, to be held in trust for the benefit of the holders of the Shares, cash in an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited in accordance with the Paying Agent shall hereinafter be referred to as this Article (the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments of the Merger Consideration due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time (and after receipt by the Paying Agent from the Company’s transfer agent of all information reasonably necessary to enable the Paying Agent to effect the mailing set forth in any event no later than the third (3rd) Business Day thereafterthis Section 2.3(b)), the Surviving Corporation Company shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (a “CertificatesCertificate”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) ), if any, that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares Certificate in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)thereto. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share Certificate, and the Certificate so surrendered shall forthwith be canceled. cancelled.
(c) The Paying Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), if any, the Merger Consideration for each such Book-Entry Share, upon receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request), and such Book-Entry Shares shall then be cancelled.
(d) No interest will be paid to or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of such Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(ce) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent and the Paying Agent that such tax either has been paid or is not applicable.
(df) Until surrendered as contemplated by this Section 3.32.3, each Certificate or and Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(eg) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(fh) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent; provided, on a daily basisthat (i) no investment of such cash shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (ii) such investments in all events shall be in short-term obligations of the United States of America with maturities of no more than 30 days, or guaranteed by, and backed by the full faith and credit of, the United States of America. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made by the Paying Agent hereunder, Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to such deficiency. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Company.
(gi) Any portion At any time following the first anniversary of the Exchange Fund Effective Time, the Surviving Company shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation Company (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such Certificate payable upon due surrender of their Certificates or Book-Entry Share, without interestShares.
(hj) None The Surviving Company shall pay all charges and expenses of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect connection with the exchange of cash from Shares for the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawMerger Consideration.
(ik) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by reasonably acceptable to Parent and the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation Company with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(jl) Any None of Parent, the Surviving Company, the Paying Agent or any other Person shall be liable to any Person in respect of any portion of the Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been exchanged prior to the date on which the related Merger Consideration made available would escheat to or become the property of any Governmental Entity, such Merger Consideration shall, to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parentextent permitted by applicable Law, upon demandbecome the property of the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.
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Exchange and Payment. (a) Prior to Promptly after the First Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with a bank or trust company designated by Parent (the Paying “Exchange Agent” ), in trust for the benefit of holders of shares of Company Common Stock and Company Notes immediately prior to the First Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), an amount book-entry shares (or certificates if requested) representing the shares of cash sufficient Parent Common Stock issuable pursuant to deliver Sections 3.1(a)(i) and 3.3. In addition, Parent shall make available by depositing with the Exchange Agent, as necessary from time to holders of Shares time after the Merger Consideration to which they are entitled First Effective Time, any dividends or distributions payable pursuant to Section 3.13.4(d). Any All certificates representing shares of Parent Common Stock, dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the First Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, the Surviving Corporation parties shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”” ) that immediately prior to the First Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a)shares of Company Common Stock, (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the First Merger Consideration Consideration, any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a3.4(d). Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect shares of the Shares Company Common Stock formerly represented by such Certificate (other than Excluded Shares or BookDissenting Shares) (A) that number of shares of Parent Common Stock (after taking into account all shares of Company Common Stock then held by such holder under all Certificates so surrendered) to which such holder of Company Common Stock shall have become entitled pursuant to Section 3.1(a)(i) (which shall be in uncertificated book-Entry Share entry form unless a physical certificate is requested), and (B) any dividends or other distributions payable pursuant to Section 3.4(d), and the Certificate so surrendered shall forthwith be canceledcancelled. Promptly after the First Effective Time and in any event not later than the third Business Day thereafter, Parent shall cause the Exchange Agent to issue and send to each holder of uncertificated shares of Company Common Stock represented by book entry (such securities, collectively, the “Book-Entry Shares” ) other than with respect to Excluded Shares or Dissenting Shares, and to each Company Noteholder, (1) that number of shares of Parent Common Stock (with respect to holders of Company Common Stock, after taking into account all shares of such stock then held by such holder as Book-Entry Shares) to which such holder shall have become entitled pursuant to the provisions of Section 3.1(a)(i) (which shall be in book-entry form unless a physical certificate is requested), and (2) any dividends or other distributions payable pursuant to Section 3.4(d), without such holder being required to deliver a Certificate or Company Note, or an executed letter of transmittal to the Exchange Agent, and such Book-Entry Shares shall then be cancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions, if any, payable in respect to holders of Certificates or Book-Entry Shares representing Company Common Stock. For the avoidance of doubt, until surrendered as contemplated by this Section 3.3, each Certificate, other than Excluded Shares or Dissenting Shares. Payment of , shall be deemed after the First Effective Time to represent only the right to receive the First Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate payable in respect thereof, plus any dividends or Book-Entry Shareother distributions payable pursuant to Section 3.4(d).
(c) If payment of the First Merger Consideration is requested to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, or in the case of a Company Note, other than the Person listed as the registered owner thereof on Schedule I hereto, it shall be a condition of payment that such that, in the case of a Certificate, any Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or transfer, and, in the case of Book-Entry Shares and Company Notes, that such Book-Entry Share or Company Note shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the First Merger Consideration to a Person other than the registered holder of the Certificate or such Certificate, Book-Entry Share surrendered Share, or Company Note, or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate (i) No dividends or Book-Entry Share other distributions with respect to Parent Common Stock with a record date after the First Effective Time shall be deemed at paid to the holder of any time after unsurrendered Certificate with respect to the Effective Time to represent only shares of Parent Common Stock that the holder thereof has the right to receive upon the Merger Consideration payable in respect of Shares theretofore represented by surrender thereof until the holder thereof shall surrender such Certificate in accordance with this Article III. Following the surrender of a Certificate in accordance with this Article III, there shall be paid to the record holder thereof, without interest, (A) promptly after such surrender, the amount of any dividends or other distributions with a record date after the First Effective Time theretofore paid with respect to such shares of Parent Common Stock, and (B) at the appropriate payment date, the amount of dividends or other distributions with a record date after the First Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(i) Notwithstanding anything in the foregoing to the contrary, holders of Book-Entry Shares, as applicable, pursuant Shares and Company Noteholders who are entitled to receive shares of Parent Common Stock under this Article III shall be paid (A) at the time of payment of such Parent Common Stock by the Exchange Agent under Section 3.1(a3.4(b), without any interest thereonthe amount of dividends or other distributions with a record date after the First Effective Time theretofore paid with respect to such shares of Parent Common Stock, and (B) at the appropriate payment date, the amount of dividends or other distributions with a record date after the First Effective Time but prior to the time of such payment by the Exchange Agent under Section 3.4(b) and a payment date subsequent to the time of such payment by the Exchange Agent under Section 3.4(b) payable with respect to such shares of Parent Common Stock.
(e) All The First Merger Consideration delivered upon the surrender for exchange of Certificates Consideration, including any dividends or Book-Entry Shares other distributions payable pursuant to Section 3.4(d) in accordance with the terms of this Article III shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Certificates or Book-Entry Shares, and in full satisfaction for the cancellation of the principal amount of the Company Notes. At the First Effective Time, the stock and note transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation shares of the Shares Company Common Stock or Company Notes that were outstanding immediately prior to the First Effective Time. If, after the First Effective Time, Certificates are presented to the First Step Surviving Corporation Company or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry SharesShares or Company Notes, such Certificates or Book-Entry Shares or Company Notes shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent Fractional shares of Parent Common Stock issuable upon consummation of the First Merger shall invest any cash included in be rounded up to the Exchange Fund as directed by Parent, on a daily basisnearest share. Any interest fractional shares of Parent Common Stock that a holder of shares of Company Common Stock or other income resulting from such investments Company Notes is entitled to receive (through multiple Certificates or Book-Entry Shares or otherwise) issuable upon the conversion of shares of Company Common Stock or Company Notes shall be paid aggregated together first and prior to Parent, upon demandrounding such holder’s First Merger Consideration to the nearest share.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one six (16) year months after the First Effective Time shall be delivered to Parentthe Surviving Company, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III (except to the extent representing Excluded Shares or Dissenting Shares) shall thereafter look only to the Surviving Corporation Company, as general creditors thereof, for payment of the First Merger Consideration, any unpaid dividends or other distributions payable pursuant to Section 3.4(d) (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the First Step Surviving CorporationCompany, the Paying Surviving Company, the Exchange Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund shares of Parent Common Stock, dividends or other distributions with respect thereto properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates shall not have been exchanged prior to two years after the First Effective Time (or immediately prior to such earlier date on which the related First Merger Consideration (and all dividends or other distributions with respect to shares of Parent Common Stock) would otherwise escheat to or become the property of any Governmental Entity), any such First Merger Consideration (and such dividends, distributions and cash) in respect thereof shall, to the extent permitted by applicable Law, become the property of the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.
(i) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Xxxxxx on a daily basis. Any interest and other income resulting from such investments shall be paid to Parent.
(j) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the First Step Surviving Corporation Company with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the First Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent thereof, any dividends or other distributions payable pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand3.4(d).
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company Company) with the Company’s transfer agent to act as agent for the Merger Shareholders in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which the Merger Shareholders shall become entitled pursuant to Article II. On the day of (and immediately following) Not more than two full Business Days after the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited (i) with the Paying Agent shall cash in immediately available funds in an amount sufficient to make all payments to Merger Shareholders required pursuant to Article II (such cash being hereinafter be referred to as the “Exchange Payment Fund.” ”) and (ii) in an account designated by Parent not fewer than two Business Days prior to the Effective Time, cash in immediately available funds in an amount equal to the sum of the Option Payments and Warrant Payments to be used by the Surviving Corporation solely to make the payments required by Section 2.2. If Parent does not make the deposits called for by the preceding sentence within two full Business Days of the Effective Time, the parties shall immediately act to give effect to the provisions of Section 5.7(e). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)Article II, except as provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other actions contemplated by Article II.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) second Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a)(i), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a)(i). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate, and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a)(i) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a)(i), without any interest thereon.
(e) All Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. Pacific time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration delivered (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. Pacific time on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(fg) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Mooxx’x Xxvestors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash in immediately available funds into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Corporation.
(gh) Any portion of At any time following the Exchange Fund date that is 12 months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), ) as general creditors thereof, for payment of creditor thereof with respect to the Merger Consideration with respect to Shares formerly represented by such Certificate payable upon due surrender of their Certificates or Book-Entry ShareShares. The Surviving Corporation shall pay all charges and expenses, without interest.
(h) None including those of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person Agent, in respect connection with the exchange of cash from Shares for the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawMerger Consideration.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company Company) with the Company’s transfer agent (the “Paying Agent”) for the payment of the Merger Consideration to which the Company’s shareholders shall become entitled pursuant to Section 3.1(i). On Promptly after the day of Effective Time on the Closing Date, Parent shall (and immediately followingGuarantor shall cause Parent to) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as 3.1(i) (the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a3.1(i). The Payment Fund may be invested by the Paying Agent as directed by Parent, except as provided in that (i) no such investment or losses thereon shall relieve Parent or the Surviving Corporation from making the payments required by this Agreement. Article III or affect the amount of Merger Consideration payable to the holders of the Common Shares, and following any losses, Parent shall pay all fees and expenses promptly provide additional funds to the Paying Agent to add to the Payment Fund for the benefit of the Paying AgentCompany’s shareholders immediately prior to the Effective Time in the amount of any such losses and (ii) such investments shall be in short term obligations of the United States with maturities of no more than 30 days and guaranteed by the United States and backed by the full faith and credit of the United States or in commercial paper obligations rated P-1 or A-1 or better by Xxxxx’x Investors Services, Inc. or Standard & Poor’s Corporation, respectively. Any interest or other income resulting from such investments shall be payable to the Surviving Corporation.
(b) As soon promptly as reasonably practicable after the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, Parent and the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of (i) an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Common Shares that were converted into or (ii) uncertificated Common Shares represented by book-entry immediately prior to the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(aEffective Time (“Book-Entry Shares”), (iA) a form of letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person shall pass, only upon proper delivery of the Certificates to the Paying AgentAgent or, and which in the case of Book-Entry Shares, upon adherence to the customary procedures set forth in the letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specifyof transmittal) and (iiB) instructions for use in effecting the surrender of such Certificates or Book-Book Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a3.1(i). Upon surrender of a Certificate or Book-Entry Share to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions theretoexecuted, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceledShare. No interest will shall be paid or accrued shall accrue on any Merger Consideration payable in respect upon surrender of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable any Certificate or Book-Entry Share.
(c) If payment of . In the event that the Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered any Certificate or Book-Entry Share is registered, it shall be a condition of payment that such the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer transfer, that the signatures on such Certificate or such Book-Entry Share any related stock power shall be properly transferred guaranteed and that the Person requesting such payment shall have paid pay any transfer and or other Taxes required by reason of the such payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established establish to the satisfaction of Parent the Surviving Corporation that such tax either has Taxes have been paid or is are not applicable.
(d) . Until surrendered as contemplated by this Section 3.33.3(b), each Common Share represented by a Certificate or and each Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender or transfer the Merger Consideration payable in respect of Shares each Share theretofore represented by such Certificate or Book-Entry SharesShare, as applicable, pursuant to Section 3.1(a3.1(i), without any interest thereon.
(ec) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Common Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Common Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case delivery of Dissenting Sharesall documents required hereunder.
(fd) The Paying Agent Parent shall invest cause the Surviving Corporation to pay through its payroll system or otherwise to each holder of Company Stock Options or Company Stock-Based Awards, the applicable consideration (if any) payable to each such holder, subject to and in accordance with this Section 3.3, as soon as reasonably practicable after the Effective Time (but in any cash included in event no later than ten (10) Business Days) after the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demandEffective Time.
(ge) Any portion of At any time following the Exchange Fund date that is twelve months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any Payment Funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed have been made available to the Paying Agent and that have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), ) only as general creditors thereof, for payment of the Merger Consideration thereof with respect to Shares formerly represented by such the Merger Consideration, without any interest, payable upon due surrender of their Certificate or Book-Entry Share, without interestShares.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(if) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with designate a bank or trust company designated that is approved by Parent and reasonably acceptable to the Company (which approval shall not be unreasonably withheld, conditioned or delayed) to act as agent for the shareholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which shareholders of the Company shall become entitled pursuant to this Article II. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled pursuant to in accordance with Section 3.1. Any 2.1(a) (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a2.1(a), except as provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other amounts contemplated by this Article II.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal in customary form of the Paying Agent (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a). Upon surrender of a Certificate to the Paying AgentAgent (or compliance with the replacement requirements established by the Paying Agent as contemplated by Section 2.3(i)), together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the third (3rd) Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent (but subject to receipt of an “agent’s message” or such other evidence that the Paying Agent may reasonably request), and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that any such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a), without any interest thereon.
(e) All Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to request that (i) if the Closing occurs at or prior to 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration delivered (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first business day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date on or after the Closing Date shall be paid to the holder of any unsurrendered Certificates or Book-Entry Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(fg) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to ParentParent or the Surviving Corporation, upon demandas Parent so directs.
(gh) Any portion of At any time following the Exchange Fund date that is twelve (and 12) months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to Parent or the Surviving Corporation, as Parent so directs, any funds (including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such payable upon due surrender of their Certificate or Book-Entry ShareShares. Any amounts remaining unclaimed by holders of any such Certificates or Book-Entry Shares five (5) years after the Effective Time, without interest.
or at such earlier date as is immediately prior to the time at which such amounts would otherwise escheat to, or become property of, any Governmental Entity, will, to the fullest extent permitted by applicable Law, become the property of the Surviving Corporation free and clear of any claims or interest of any such holders (hand their successors, assigns or personal representatives) previously entitled thereto. None of Parent, the Surviving Corporation, Corporation or the Paying Agent or any other Person shall be liable to any Person in respect holder of cash from the Exchange Fund properly Shares for any amounts delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective TimeClosing, Parent Xxxxxx and Merger Sub Xxxx shall enter into an agreement with jointly appoint a bank or trust company designated by Parent and reasonably acceptable to act as exchange agent for the Company payment of the Merger Consideration (the “Paying Exchange Agent”). On the day of (and immediately following) Prior to the Effective Time, Parent or and prior to filing the Statement of Merger Sub with the Arizona Corporation Commission, Xxxxxx shall deposit (or cause to be deposited) book-entry shares of Xxxxxx Common Stock representing the aggregate Merger Consideration with the Paying Exchange Agent, in trust for the benefit of holders of Shares, an amount record of cash sufficient shares of Rook Common Stock to deliver be converted into the right to holders of Shares receive the Merger Consideration to which they are entitled pursuant to Section 3.12.1(a)(ii). Any cash In addition, Xxxxxx shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time, any dividends or distributions payable pursuant to Section 2.2(e). In the event such deposit shall be insufficient to make payments, Xxxxxx shall promptly deposit, or cause to be deposited, additional book-entry shares of Xxxxxx Common Stock or funds, as applicable, with the Exchange Agent in an amount which is equal to the deficiency in the amount required to make such payment. All book-entry shares of Xxxxxx Common Stock, dividends and distributions deposited with the Paying Exchange Agent shall hereinafter be are referred to in this Agreement as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)2.1 and Section 2.2, except as expressly provided for in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable after the Effective Time, but Time and in any event no not later than the third fifth (3rd5th) Business Day thereafter, the Surviving Corporation Xxxxxx shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) ), and may cause the Exchange Agent to mail to each holder of uncertificated Shares represented by book a book-entry share (“Book-Entry Shares”) ), in each case that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), shares of Rook Common Stock (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, or in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal, and which letter shall be in customary form and contain such other provisions as Parent or Xxxxxx, Xxxx and the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a)(ii) and any dividends or other distributions payable pursuant to Section 2.2(e) (which instructions shall be in customary form and contain such other provisions as Xxxxxx, Rook and the Exchange Agent may reasonably specify). Upon With respect to holders of Rook Book-Entry Shares, the parties shall cooperate to establish procedures with the Exchange Agent to allow the Exchange Agent to transmit, following the Effective Time, to such holders or their nominees, upon surrender of Rook Common Stock, the Merger Consideration and any dividends or distributions, in each case, to which such holders are entitled pursuant to the terms of this Agreement.
(c) Each holder of shares of Rook Common Stock that have been converted into a right to receive the Merger Consideration, upon proper surrender of a Certificate or Book-Entry Shares to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor (i) the Merger Consideration that number of shares of Xxxxxx Common Stock to which such holder is of Rook Common Stock shall have become entitled pursuant to receive the provisions of Section 2.1(a)(ii) (which shall be in uncertificated book-entry form), and (ii) an amount (if any) in immediately available funds, after giving effect to any required Tax withholdings as provided in Section 2.5) of any dividends or other distributions payable pursuant to Section 3.1(a) in respect of 2.2(e), and the Shares represented by such Certificate or Book-Entry Share and the Certificate Shares so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration Consideration, or any unpaid dividends and distributions, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration Xxxxxx shall be made cause the Exchange Agent to make all payments required pursuant to the preceding sentence as promptly soon as practicable after following the date valid surrender of Proper Delivery of the applicable Certificates or Book-Entry Shares. Until surrendered as contemplated by this Section 2.2, each Certificate or Book-Entry ShareShare shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable pursuant to Section 2.1(a)(ii) in respect thereof and any dividends or other distributions payable pursuant to Section 2.2(e), but shall not entitle its holder or any other Person to any rights as a stockholder of Rook or Xxxxxx.
(cd) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent Xxxxxx and the Exchange Agent that such tax either has been paid or Tax is not applicable.
(de) Until surrendered as contemplated by this Section 3.3, each No dividends or other distributions with respect to Xxxxxx Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate or Book-Entry Share shall be deemed at any time after with respect to the Effective Time to represent only shares of Xxxxxx Common Stock that the holder thereof has the right to receive upon the Merger Consideration payable in respect of Shares theretofore represented by surrender thereof, until the holder thereof shall surrender such Certificate or Book-Entry SharesShare in accordance with this Article II. Following the proper surrender of a Certificate or Book-Entry Share in accordance with this Article II, there shall be paid to the record holder thereof, without interest, in addition to the Merger Consideration, (i) promptly following such surrender, the amount of any dividends or other distributions with a record date after the Effective Time and payment date on or prior to the date of such surrender in respect of the whole shares of Xxxxxx Common Stock issued as applicableMerger Consideration in exchange for such surrender and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but with a payment date subsequent to such surrender in respect of the shares of Xxxxxx Common Stock issued as Merger Consideration in exchange for such surrender. For purposes of dividends and other distributions in respect of the Xxxxxx Common Stock, the Xxxxxx Common Stock to be issued as Merger Consideration shall be entitled to dividends and other distributions pursuant to this Section 2.2(e) as if issued and outstanding as of the Effective Time.
(f) The Merger Consideration and any dividends or other distributions payable pursuant to Section 3.1(a), without any interest thereon.
(e2.2(e) All Merger Consideration delivered issued and paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares shares of Rook Common Stock formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company Rook shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation shares of the Shares Rook Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer transfer, or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demandII.
(g) Any portion of the Exchange Fund (and including any interest or other income earned thereonon the Exchange Fund) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws)Corporation, as general creditors thereof, for payment of the Merger Consideration with respect and any unpaid dividends or other distributions payable pursuant to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) Section 2.2(e). None of ParentXxxxxx, the Surviving Corporation, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund shares of Xxxxxx Common Stock, dividends or other distributions with respect thereto properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Xxxxxx; provided that (i) no such investment shall relieve Xxxxxx or the Exchange Agent from making the payments required by this Article II, and following any losses Xxxxxx shall promptly provide additional funds to the Exchange Agent for the benefit of the holders of Rook Common Stock in the amount of such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Any interest and other income resulting from such investments shall be paid as agreed between Xxxxxx and the Exchange Agent.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent)Xxxxxx and the Exchange Agent, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent Xxxxxx or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent Xxxxxx or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent and any dividends or other distributions payable pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand2.2(e).
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company to act as paying agent for the Company Stockholders in connection with the Merger (the “Paying Agent”)) to receive the aggregate Per Share Merger Consideration to which the Company Stockholders shall become entitled pursuant to Section 3.01 and Section 3.02. On the day of (and immediately following) As promptly as practicable following the Effective TimeTime and in any event not later than the first Business Day thereafter, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any 3.01 and Section 3.02 (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)3.01 and Section 3.02, except as provided in this Agreement. Parent shall pay or cause the Surviving Corporation to pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the aggregate Per Share Merger Consideration and other amounts contemplated by Section 3.01 and Section 3.02.
(b) As soon promptly as reasonably practicable after following the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, Parent and the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of (i) an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that or (ii) uncertificated Shares represented by book-entry (“Book-Entry Shares”) which, in each case, were converted into the right to receive the Per Share Merger Consideration with respect thereto pursuant to Section 3.1(a3.01(a), (iA) a form of letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person shall pass, only upon proper delivery of the Certificates to the Paying AgentAgent or, and which in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specifyof transmittal) and (iiB) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Per Share Merger Consideration payable with respect thereto pursuant to Section 3.1(a3.01(a). Upon surrender of a Certificate or Book-Entry Share to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions theretoexecuted, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Per Share Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share, and such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceled. No interest will shall be paid or accrued shall accrue on any Merger Consideration cash payable in respect upon surrender of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable any Certificate or Book-Entry Share.
(c) If payment of . In the event that the Per Share Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered any Certificate or Book-Entry Share is registered, it shall be a condition of payment that such the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer transfer, that the signatures on such Certificate or such Book-Entry Share any related stock power shall be properly transferred guaranteed and that the Person requesting such payment shall have paid pay any transfer and or other Taxes required by reason of the such payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established establish to the satisfaction of Parent the Surviving Corporation that such tax either has Taxes have been paid or is are not applicable.
(d) . Until surrendered as contemplated by this Section 3.33.03, each share represented by a Certificate or and each Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender or transfer the Per Share Merger Consideration payable in respect of Shares each Share theretofore represented by such Certificate or Book-Entry SharesShare, as applicable, pursuant to Section 3.1(a3.01(a), without any interest thereon.
(ec) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law Legal Requirements in the case of Dissenting Shares.
(fd) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by ParentParent in investments that are customary for transactions of similar nature and size as the Merger, on a daily basisprovided, that (i) such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively and (ii) no such investment shall relieve the Surviving Corporation or Parent from making the payments required by this Article IV. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 3.04), Parent shall promptly deposit (or cause to be deposited) cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Corporation.
(ge) Any portion of At any time following the Exchange Fund date that is twelve (and 12) months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of the Merger Consideration thereof with respect to Shares formerly represented by such the Per Share Merger Consideration payable upon due surrender of their Certificate or Book-Entry ShareShares. Any portion of the Payment Fund remaining unclaimed by holders of Shares as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Entity will, without interestto the extent permitted by applicable Legal Requirements, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(hf) None of Parent, Merger Sub, the Company, the Surviving Corporation, Corporation or the Paying Agent or any other Person shall be liable to any Person in respect of any cash from the Exchange Fund properly delivered to a public official Governmental Entity pursuant to any applicable abandoned property, escheat or similar LawLegal Requirements.
(ig) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Per Share Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company) with the Company’s transfer agent to act as agent for the shareholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which shareholders of the Company shall become entitled pursuant to this Article II. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled in accordance with Section 2.1(a) and make all payments pursuant to Section 3.1. Any Section 2.2(a) (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(aSection 2.1(a) and Section 2.2(a), except as provided in this Agreement. Parent The Surviving Company shall pay all fees charges and expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other amounts contemplated by this Article II. Prior to the Effective Time, Parent and the Company shall establish procedures with the Paying Agent and the Depositary to ensure that (A) the Paying Agent will transmit to the Depositary as promptly as reasonably practicable following the Effective Time an amount in cash in immediately available funds equal to the product of (x) the number of ADSs issued and outstanding immediately prior to the Effective Time (other than ADSs representing Excluded Shares and Dissenting Shares) and (y) the Merger Consideration, and (B) the Depositary will distribute the Merger Consideration to each holder of ADSs (other than ADSs representing Excluded Shares and Dissenting Shares) upon surrender by them of the ADSs. The Surviving Company will pay any applicable fees, charges and expenses of the Paying AgentDepositary and government charges (other than withholding Taxes, if any, which shall be withheld by the Depositary in accordance with Section 2.5) due to or incurred by the Depositary in connection with distribution of the Merger Consideration to holders of ADSs and the cancellation of ADSs. No interest shall be paid or will accrue on any amount payable in respect of the Shares (including ADSs) pursuant to the provisions of this Article II.
(b) As soon as reasonably practicable Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Company shall cause the Paying Agent or Depositary, as applicable, to mail to each holder of record of an issued and outstanding certificate or outstanding certificates (“Certificates”, which term shall include, except as otherwise provided in this Agreement, any physical certificated American Depositary Receipts (each, an “ADR”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”representing an ADS) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(aSection 2.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying AgentAgent or Depositary, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specifyapplicable) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(aSection 2.1(a). Upon surrender of a Certificate to the Paying AgentAgent or Depositary, as applicable, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent may reasonably require (a “Proper Delivery”)or Depositary, as applicable, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share (subject to deduction for any required withholding Tax in accordance with Section 2.5), and the Certificate so surrendered shall forthwith be canceled. Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Paying Agent or Depositary, as applicable, shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”, which term shall include, except as otherwise provided in this Agreement, each ADS represented by book entry), a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 2.1(a) in respect of such Book-Entry Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent or Depositary, and such Book-Entry Shares shall then be canceled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by this Section 3.3, each Certificate DTC or Book-Entry Share shall be deemed at any time after such nominee immediately prior to the Effective Time to represent only the right to receive multiplied by the Merger Consideration payable in respect of Shares theretofore represented by (such Certificate or Book-Entry Sharesamount, as applicable, pursuant to Section 3.1(athe “DTC Payment”), without any interest thereonand (ii) if the Closing occurs after 11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books register of members of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books register of members of the Surviving Corporation Company of the Shares that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or Company, the Paying Agent or Depositary, as applicable, for transfer or transfer is sought for Book-Entry Shares, such request for transfer of Certificates or Book-Entry Shares shall be denied as all Shares shall have already been canceled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.5), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Company.
(g) Any portion of At any time following the Exchange Fund date that is 12 months after the Effective Time, the Surviving Company shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto and including the proceeds of any investment thereof) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, and any holders of Certificates look to Parent or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation Company (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such payable upon due surrender of their Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawShares.
(i) If any Certificate (excluding any ADR) shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation Company with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(jii) Any portion If any ADR shall have been lost, stolen or destroyed, Parent and the Surviving Company shall use reasonable best efforts to cause the Depositary to take such actions as are necessary or appropriate pursuant to the terms of Section 2.8 of the Deposit Agreement (whether the agreement is still in force or not) in respect of such lost, stolen or destroyed ADR.
(i) None of Parent, Merger Consideration made available to Sub, the Surviving Company or the Paying Agent shall be liable to any Person in respect of any cash from the Payment Fund delivered to the Surviving Company or a public official pursuant to Section 3.3(a) any applicable abandoned property, escheat or similar Law. If any Certificate or Book-Entry Share has not been surrendered before such date on which any cash in respect of such Certificate or Book-Entry Share would otherwise escheat to pay for Shares for which appraisal rights have been perfected as described or become the property of any Governmental Entity, any such cash in Section 3.5 shall be returned respect of such Certificate shall, to Parentthe extent permitted by Law, upon demandbecome the property of the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Fly Leasing LTD)
Exchange and Payment. (a) Prior to Promptly after the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares, Shares an amount of cash sufficient to deliver to holders of Shares the Share Merger Consideration and for the benefit of holders of Public Warrants cancelled in connection with the Merger, an amount of cash sufficient to deliver to holders of such Public Warrants the Public Warrant Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with the Paying Exchange Agent shall hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a) or Section 3.1(d), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(ba) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Exchange Agent to mail to (i) each holder of record of an outstanding certificate or outstanding certificates (“Certificates”), (ii) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Share Merger Consideration with respect thereto pursuant to Section 3.1(a)) and (iii) each holder of record of an outstanding Public Warrant that immediately prior to the Effective Time represented an outstanding Public Warrant that was converted into the right to receive the Public Warrant Merger Consideration, (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Public Warrants held by such Person shall pass, only upon proper delivery of the Certificates or Public Warrants to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (iiB) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Share Merger Consideration payable with respect thereto pursuant to Section 3.1(a) or Public Warrants in exchange for the Public Warrant Merger Consideration payable with respect thereto under Section 3.1(d). Upon surrender of a Certificate or Public Warrant to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, Share or Public Warrant represented by book entry upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Certificate, Book-Entry Share or Public Warrant shall be entitled to receive in exchange therefor the Share Merger Consideration or Public Warrant Consideration, as the case may be, that such holder is entitled to receive pursuant to Section 3.1(a) 3.1 in respect of the Shares represented by such Certificate or Book-Entry Share or in respect of such Public Warrant and the Certificate or Public Warrant so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Share Merger Consideration payable in respect of Certificates or Book-Entry SharesPublic Warrant Merger Consideration. Payment of Share Merger Consideration or Public Warrant Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Certificate, Book-Entry ShareShare or Public Warrant.
(cb) If payment of the Share Merger Consideration or Public Warrant Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Certificate, Book-Entry Share or Public Warrant is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Public Warrant or Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Share Merger Consideration or Public Warrant Merger Consideration to a Person other than the registered holder of the Certificate or Certificate, Book-Entry Share or Public Warrant surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(dc) Until surrendered as contemplated by this Section 3.3, each Certificate or Certificate, Book-Entry Share or Public Warrant shall be deemed at any time after the Effective Time to represent only the right to receive the Share Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry SharesShares or the Public Warrant Merger Consideration payable in respect of such Public Warrants, as applicable, pursuant to Section 3.1(a) or Section 3.1(d), respectively, without any interest thereon.
(ed) All Share Merger Consideration or Public Warrant Merger Consideration delivered upon the surrender for exchange of Certificates or Certificates, Book-Entry Shares or Public Warrants in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry SharesShares and all rights pertaining to such Public Warrants as the case may be. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares or Public Warrants that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry SharesShares or Public Warrants, such Certificates or Certificates, Book-Entry Shares or Public Warrants shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(fe) The Paying Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(gf) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Certificates, Book-Entry Shares one (1) year or Public Warrants six months after the Effective Time shall be delivered to the Parent, upon demand, and any holders of Certificates or Certificates, Book-Entry Shares or Public Warrants who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Share Merger Consideration or Public Warrant Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry ShareShares or Public Warrants, without interest.
(hg) None of Parent, the Surviving Corporation, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ih) If any Certificate or Public Warrant shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate or Public Warrant to be lost, stolen or destroyed and, if required by Parent or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such CertificateCertificate or Public Warrant, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Share Merger Consideration or Public Warrant Merger Consideration payable in respect thereof pursuant to this Agreement.
(ji) Any portion of the Share Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.3(a) 3.3 to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Perseon Corp)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub I shall enter into an agreement (in a form reasonably acceptable to the Company) with a such bank or trust company designated by Parent and reasonably acceptable to the Company to act as exchange agent for the stockholders of the Company in connection with the Mergers (the “Paying Exchange Agent”). On the day of () and immediately following) the Effective TimeParent shall deposit, Parent or Merger Sub shall deposit (or cause to be deposited) , with the Paying Exchange Agent, in trust for the benefit of the holders of Shares, (i) an aggregate number of shares of Parent Common Stock to be issued in book-entry form and (ii) an aggregate amount of cash sufficient cash, in each case, comprising approximately the amounts required to deliver to holders of Shares the Merger Consideration to which they are entitled be delivered pursuant to Section 3.12.1(a) in respect of Shares. Any In addition, Parent shall deposit, or cause to be deposited, with the Exchange Agent, as necessary from time to time after the Effective Time cash in lieu of any fractional shares payable pursuant to Section 2.6(k). All shares of Parent Common Stock and cash deposited with the Paying Exchange Agent pursuant to this Section 2.6(a) shall hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due the aggregate Merger Consideration payable pursuant to Section 3.1(a2.1(a), except as provided in this Agreement. Parent or the Surviving Company shall pay all fees charges and expenses expenses, including those of the Paying Exchange Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration.
(b) As soon as reasonably practicable Promptly after the Effective Time and in any event not later than the fifth (5th) Business Day following the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Company shall cause the Paying Exchange Agent to mail to (i) in the case of each holder of record as of an outstanding the Effective Time of a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant Consideration, to Section 3.1(a), mail (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be ) in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (iiB) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable and (ii) in the case of each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), to mail customary provisions regarding delivery of an “agent’s message” with respect thereto pursuant to Section 3.1(a)such Book-Entry Shares. Upon surrender of a Certificate or Book-Entry Shares to the Paying Exchange Agent, together with such letter of transmittal (orwith, in the case of a Book-Entry Sharecertificated Shares, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share Shares shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of for the Shares formerly represented by such Certificate or Book-Entry Shares (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share and any cash in lieu of fractional shares pursuant to Section 2.6(k), and the Certificate and Book-Entry Shares so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share and shall be properly transferred transferred, and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.6, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicablethereof, pursuant to Section 3.1(a)this Article II, without any interest thereon.
(e) All Merger Consideration delivered paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation Company or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Exchange Agent shall invest any cash included in the Exchange Fund as directed by ParentXxxxxx, on a daily basis. If for any reason (including investment losses) the cash in the Exchange Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder (but subject to Section 2.7), Parent shall promptly deposit cash into the Exchange Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid to the property of, and shall be payable to, Parent, upon demand.
(g) Any portion of At any time following the Exchange Fund date that is twelve (and any interest or other income earned thereon12) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year months after the Effective Time Time, Parent shall be delivered entitled to Parent, upon demandrequire the Exchange Agent to deliver to it or its designee any funds (including any interest received with respect thereto) which have been made available to the Exchange Agent and which have not been disbursed to holders of Certificates, and any thereafter such 9 holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter be entitled to look only to Parent and the Surviving Corporation Company (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration payable upon due surrender of their Certificate. Parent shall, or shall cause the Surviving Company to, pay all charges and expenses, including those of the Exchange Agent, in connection with respect to the exchange of Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) for the Merger Consideration. None of Parent, the Surviving CorporationCompany, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by the Company’s stockholders at such date as is immediately prior to the time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall, to the extent permitted by applicable Laws, become the property of the Surviving Company, free and clear of any claims or interests of any such stockholders or their successors, assigns or personal representatives previously entitled thereto.
(ih) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavitholder’s compliance with the replacement requirements established by the Exchange Agent, in form and substance including, if reasonably required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying AgentSurviving Company, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation Company with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(i) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company will be required to provide a Certificate or an executed letter of transmittal to the Exchange Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 2.1(a).
(j) Any portion The stock transfer books of the Company shall be closed immediately upon the Effective Time, and there shall be no further registration of transfers of Shares thereafter on the records of the Company. At or after the Effective Time, the Certificates or Book-Entry Shares shall, subject to compliance with the provisions of this Article II by the holder thereof and subject to Section 2.7, represent only the right to receive the Merger Consideration made available with respect to the Paying Agent pursuant Shares formerly represented thereby.
(k) Notwithstanding any other provision of this Agreement, no fractional shares of Parent Common Stock will be issued and any holder of Shares entitled to receive a fractional share of Parent Common Stock but for this Section 3.3(a2.6(k) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned entitled to Parentreceive a cash payment in lieu thereof, upon demandwhich payment shall be calculated by the Exchange Agent and shall represent such holder’s proportionate interest in a share of Parent Common Stock based on the Parent Share Value.
Appears in 1 contract
Samples: Merger Agreement (Kineta, Inc./De)
Exchange and Payment. (a) Prior At or prior to the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled pursuant to in accordance with Section 3.1. Any 3.1(a) (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent and the Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by them in connection with the exchange of Shares for the Merger Consideration and other amounts contemplated by this Article III.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of (i) an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that or (ii) uncertificated Shares represented by book-entry (“Book-Entry Shares”) which, in each case, were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person (as defined in Section 9.3(e) hereof) shall pass, only upon proper delivery of the Certificates to the Paying AgentAgent or, in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal, as applicable, and which letter shall be in customary form and contain such other provisions as Parent or Parent, the Paying Agent or the Company may reasonably specify) and (iiB) customary instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)) and customary instructions consistent with Section 3.3(f) for use in effecting payment for lost, stolen or destroyed Certificates. Upon surrender of a Certificate or Book-Entry Share to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions theretoexecuted, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share (subject to deduction for any required withholding Taxes), and the such Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry SharesShare shall forthwith be cancelled. Payment of Merger Consideration No interest shall be made as promptly as practicable after the date paid or shall accrue on any cash payable upon surrender of Proper Delivery of the applicable any Certificate or Book-Entry Share.
(c) If payment of . In the event that the Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered any Certificate or Book-Entry Share is registered, it shall be a condition of payment that such the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer transfer, that the signatures on such Certificate or such Book-Entry Share any related stock power shall be properly transferred guaranteed and that the Person requesting such payment shall have paid pay any transfer and or other Taxes required by reason of the such payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established establish to the satisfaction of Parent and the Paying Agent that such tax either has Taxes have been paid or is are not applicable.
(d) . Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender or transfer the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(ec) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(fd) The Paying Agent shall may invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, however, that any investment of such cash shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government, with maturity dates no longer than appropriate to make timely payments of the Merger Consideration. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(ge) Any portion of the Exchange principal of the Payment Fund (and excluding any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one nine (19) year months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demanddemand by Parent to the Paying Agent, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws)Corporation, as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) . None of Parent, Merger Sub, the Surviving Corporation, Company or the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund any Merger Consideration that is properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(if) If any Certificate shall have has been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Ashworth Inc)
Exchange and Payment. (a) Prior to the Effective TimeClosing, Parent Xxxxxx and Merger Sub Saturn shall enter into an agreement with jointly appoint a bank or trust company designated by Parent and reasonably acceptable to act as exchange agent for the Company payment of the Merger Consideration (the “Paying Exchange Agent”). On the day of (and immediately following) Prior to the Effective Time, Parent or and prior to filing the Certificate of First Merger Sub with the Secretary of State of the State of Delaware, Xxxxxx shall deposit (or cause to be deposited) book-entry shares of Xxxxxx Common Stock representing the aggregate Merger Consideration with the Paying Exchange Agent, in trust for the benefit of holders of Shares, an amount record of cash sufficient shares of Saturn Common Stock to deliver be converted into the right to holders of Shares receive the Merger Consideration to which they are entitled pursuant to Section 3.12.1(b). Any cash In addition, Xxxxxx shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time, any dividends or distributions payable pursuant to Section 2.2(e). In the event such deposit shall be insufficient to make payments, Xxxxxx shall promptly deposit, or cause to be deposited, additional book-entry shares of Xxxxxx Common Stock or funds, as applicable, with the Exchange Agent in an amount which is equal to the deficiency in the amount required to make such payment. All book-entry shares of Xxxxxx Common Stock, dividends and distributions deposited with the Paying Exchange Agent shall hereinafter be are referred to in this Agreement as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)2.1 and Section 2.2, except as expressly provided for in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable Promptly after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Xxxxxx shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) ), and may cause the Exchange Agent to mail to each holder of uncertificated Shares represented by book a book-entry share (“Book-Entry Shares”) ), in each case that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), shares of Saturn Common Stock (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, or in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal, and which letter shall be in customary form and contain such other provisions as Parent or Xxxxxx, Saturn and the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (HRG Group, Inc.)
Exchange and Payment. (a) Prior Parent shall issue and deposit (or cause to the Effective Time, Parent and Merger Sub shall enter into an agreement be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of shares of Company Capital Stock immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), an amount book-entry shares (or certificates if requested) representing the shares of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled Parent Common Stock issuable pursuant to Section 3.13.1(a)(i). Any In addition, Parent shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time any dividends or other distributions payable pursuant to Section 3.4(d) (which for clarity shall not include the Cash Dividend). All certificates representing shares of Parent Common Stock, and any dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the Effective Timedate hereof, but and in any event no later more than the third ten (3rd10) Business Day thereafterDays prior to the anticipated Closing Date, the Surviving Corporation parties shall cause the Paying Exchange Agent to mail to each holder of record of an a certificate that immediately prior to the Effective Time represented outstanding certificate or outstanding certificates shares of Company Capital Stock (collectively, the “Certificates”“) and to each holder of record of uncertificated Shares shares of Company Capital Stock represented by book entry (“Book-Entry Shares”“) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration (together with respect thereto any dividends or other distributions payable pursuant to Section 3.1(a3.4(d), but not the Cash Dividend), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the any Certificates held by such Person shall pass, only upon proper delivery of such Certificates, if any, and identification of the Certificates Book- Entry Shares, if any, to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of any such Certificates or and identifying such Book-Entry Shares in exchange for the Merger Consideration (together with any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a3.4(d), but not the Cash Dividend). Upon surrender of a Certificate and identification of the Book-Entry Shares, as applicable, to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect shares of the Shares Company Capital Stock formerly represented by such Certificate or Book-Entry Share (other than Excluded Shares or Dissenting Shares) (A) that number of whole shares of Parent Common Stock (after taking into account all shares of Company Capital Stock then held by such holder under all Certificates so surrendered and Book-Entry Shares so identified) to which such holder of Company Capital Stock shall have become entitled pursuant to Section 3.1(a)(i) (which shall be in uncertificated book-entry form unless a physical certificate is requested, and which shall be issued not earlier than the day after the Dividend Record Date), and (B) any dividends or other distributions payable pursuant to Section 3.4(d) (but not the Cash Dividend), and any Certificate so surrendered surrendered, together with any Book-Entry Shares, shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made Until surrendered as promptly as practicable after the date of Proper Delivery of the applicable contemplated by this Section 3.4, each Certificate or Book-Entry ShareShare shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof (together with any dividends or other distributions payable pursuant to Section 3.4(d), but not the Cash Dividend).
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered (i) Holders of Company Capital Stock, in their capacities as contemplated by this Section 3.3such, each Certificate or Book-Entry Share shall not be deemed at entitled to any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books portion of the Company shall be closed Cash Dividend, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or and Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject not represent any right to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interestCash Dividend.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with designate a bank or trust company designated by Parent and that is reasonably acceptable to the Company to act as the payment agent in connection with the Merger (the “Paying Agent”). On the day of (and immediately following) Prior to the Effective Time, Parent or Merger Sub Purchaser shall deposit (deposit, or cause to be deposited) , with the Paying AgentAgent cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid pursuant to this Agreement plus cash in an amount sufficient to pay holders of Company Options and holders of the Garritan Holdback Rights in accordance with the terms of this Agreement (such cash being referred to as the “Payment Fund”). The Payment Fund shall be invested by the Paying Agent in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest, and/or (iii) money market funds investing solely in trust for a combination of the foregoing, as directed by Parent, pending payment thereof by the Paying Agent to the holders of the Shares, Company Options and Garritan Holdback Rights; provided, that no gain or loss thereon shall affect the amounts payable to the holders of Shares, Company Options or Garritan Holdback Rights following the Effective Time and Parent shall promptly deposit additional cash into the Payment Fund in an amount that is equal to the deficiency in the amount of cash required to satisfy fully all such cash payment obligations. Earnings from such investments shall be the sole and exclusive property of the Surviving Corporation, and no part of such earnings shall accrue to the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentCompany Options or Garritan Holdback Rights.
(b) As soon as reasonably practicable after The Paying Agent, promptly following the Effective Time, but in any event no later than shall mail the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail following materials to each holder of record of an outstanding whose Shares were converted pursuant to Section 3.1 into the right to receive the Merger Consideration, whether such Shares were represented by a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that (the “Certificates”) or were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), uncertificated and represented by book-entry (“Book-Entry Shares”):
(i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, Agent and which letter shall be in such customary form and contain have such other provisions as to which Parent or the Paying Agent and Company may reasonably specifyagree) and (ii) instructions for use in effecting the surrender of such the Certificates or Book-Entry Shares in exchange for payment of the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate for cancellation to the Paying AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal transmittal, duly executed (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with transmittal or upon the instructions thereto, and entry through a book-entry transfer agent of the surrender of such other documents as the Paying Agent may reasonably require (Book-Entry Shares on a “Proper Delivery”book-entry account statement), the holder of such Certificate or Book-Entry Share Shares shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceledShare. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration Such payment shall be made as to the holder of record promptly as practicable after following receipt of a duly executed letter of transmittal by the date of Proper Delivery Paying Agent and shall be made by either bank check or electronic wire transfer, at the option of the applicable Certificate or Book-Entry Share.
(c) holder of record. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of precedent to payment that such (x) the Certificate so surrendered shall be properly endorsed or otherwise shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that (y) the Person requesting such payment shall have paid any transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent the Surviving Corporation that such tax Tax either has been paid or is not applicable.
(d) required to be paid. Until surrendered as contemplated by this Section 3.33.2, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented cash as contemplated by such Certificate or Book-Entry Shares, as applicable, pursuant to this Section 3.1(a)3.2, without any interest thereon.
(ec) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Shares on the stock transfer books records of the Surviving Corporation Company. From and after the Effective Time, the holders of the Certificates or Book-Entry Shares that were outstanding immediately prior to the Effective TimeTime shall cease to have any rights with respect to such Shares except as otherwise provided for in this Agreement or by applicable law. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Sharesany reason, such Certificates or Book-Entry Shares they shall be canceled cancelled and exchanged as provided in this Article ARTICLE III, subject to applicable Law in the case of Dissenting Shares.
(fd) The At any time following 6 months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent shall invest to deliver to it any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
funds (g) Any portion of the Exchange Fund (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed made available to the Paying Agent and not disbursed (or for which disbursement is pending) to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) and only as general creditors thereof, for payment of thereof with respect to the Merger Consideration payable upon surrender of their Certificates or Book-Entry Shares, together with respect a duly executed letter of transmittal, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to Shares formerly represented by such any holder of a Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund Shares for Merger Consideration properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaw.
(ie) If Parent, Purchaser, the Surviving Corporation and the Paying Agent, as the case may be, shall be entitled to deduct and withhold from the relevant Merger Consideration or Offer Price otherwise payable pursuant to this Agreement to any Certificate holder of Shares such amounts that Parent, Purchaser, the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), the rules and regulations promulgated thereunder or any provision of applicable state, local or foreign law. To the extent that amounts are so withheld by Parent, Purchaser, the Surviving Corporation or the Paying Agent, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made.
(f) In the event that any Certificates shall have been lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming holder thereof, the Merger Consideration payable in respect thereof pursuant to Section 3.1; provided, however, that Parent may, in its discretion and as a condition precedent to the payment of such Certificate to be Merger Consideration, require the owners of such lost, stolen or destroyed Certificates to deliver a written indemnity agreement reasonably satisfactory to Parent and, if required reasonably deemed advisable by Parent or the Paying AgentParent, the posting by such Person of a bond in such amount sum as Parent or the Paying Agent may determine is reasonably necessary direct as indemnity against any claim that may be made against it or Parent, the Surviving Corporation or the Paying Agent with respect to such Certificate, the Paying Agent will deliver in exchange for such Certificates alleged to have been lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreementdestroyed.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Makemusic, Inc.)
Exchange and Payment. (a) Prior At or prior to the Effective Acceptance Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On , in trust for the day benefit of (and holders of Shares immediately following) prior to the Effective TimeTime (other than holders to the extent they hold Excluded Shares or Dissenting Shares), Parent or Merger Sub cash in an amount sufficient to pay the aggregate Cash Consideration in accordance with Section 3.1(a) (such cash, the “Payment Fund”) and shall deposit (or cause to be deposited) with to the Paying Agent, Company cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver pay the aggregate consideration payable to holders of Shares Company Stock Options and Company RSUs in accordance with Section 3.2(a) and Section 3.2(b). Except as otherwise provided in this Agreement, the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as the “Exchange Fund.” The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle III.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Shares formerly represented by such Certificate (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the second Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to issue and send to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares and Dissenting Shares, a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicablethereof, pursuant to Section 3.1(a)this Article III, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one six (16) year months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III (except to the extent representing Excluded Shares or Dissenting Shares) shall thereafter look only to the Surviving Corporation as general creditors thereof for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(hg) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ih) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(ji) Any portion of the Merger Cash Consideration made available to the Paying Agent pursuant to Section 3.3(a3.1(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 3.4 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company to act as paying agent for the Company Stockholders in connection with the Merger (the “Paying Agent”)) to receive the aggregate Merger Consideration to which the Company Stockholders shall become entitled pursuant to Section 3.1 and Section 3.2. On the day of (and immediately following) As promptly as practicable following the Effective TimeTime and in any event not later than the first Business Day thereafter, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any 3.1 and Section 3.2 (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)3.1 and Section 3.2, except as provided in this Agreement. Parent shall pay or cause the Surviving Corporation to pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other amounts contemplated by Section 3.1 and Section 3.2.
(b) As soon promptly as reasonably practicable after following the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, Parent and the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of (i) an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that or (ii) uncertificated Shares represented by book-entry (“Book-Entry Shares”) which, in each case, were converted into the right to receive the Per Share Merger Consideration with respect thereto pursuant to Section 3.1(a), (iA) a form of letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person shall pass, only upon proper delivery of the Certificates to the Paying AgentAgent or, and which in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specifyof transmittal) and (iiB) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate or Book-Entry Share to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions theretoexecuted, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Per Share Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share, and such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceled. No interest will shall be paid or accrued shall accrue on any Merger Consideration cash payable in respect upon surrender of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable any Certificate or Book-Entry Share.
(c) If payment of . In the event that the Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered any Certificate or Book-Entry Share is registered, it shall be a condition of payment that such the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer transfer, that the signatures on such Certificate or such Book-Entry Share any related stock power shall be properly transferred guaranteed and that the Person requesting such payment shall have paid pay any transfer and or other Taxes required by reason of the such payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established establish to the satisfaction of Parent the Surviving Corporation that such tax either has Taxes have been paid or is are not applicable.
(d) . Until surrendered as contemplated by this Section 3.3, each share represented by a Certificate or and each Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender or transfer the Per Share Merger Consideration payable in respect of Shares each Share theretofore represented by such Certificate or Book-Entry SharesShare, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(ec) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(fd) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by ParentParent in investments that are customary for transactions of similar nature and size as the Merger. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 3.4), on a daily basisParent shall promptly deposit (or cause to be deposited) cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Corporation.
(ge) Any portion of At any time following the Exchange Fund date that is twelve (and 12) months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment thereof with respect to the portion of the Merger Consideration with respect to Shares formerly represented by such payable upon due surrender of their Certificate or Book-Entry Share, without interestShares.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(if) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to Promptly after the First Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with a bank or trust company designated by Parent (the Paying “Exchange Agent”), in trust for the benefit of holders of shares of Company Common Stock and Company Notes immediately prior to the First Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), an amount book-entry shares representing the shares of cash sufficient Parent Preferred Stock issuable pursuant to deliver Sections 3.1(a)(i) and 3.3. In addition, Parent shall make available by depositing with the Exchange Agent, as necessary from time to holders of Shares time after the Merger Consideration to which they are entitled First Effective Time, any dividends or distributions payable pursuant to Section 3.13.4(d). Any All dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the First Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, the Surviving Corporation parties shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the First Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a)shares of Company Common Stock, (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the First Merger Consideration Consideration, any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a3.4(d). Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect shares of the Shares Company Common Stock formerly represented by such Certificate (other than Excluded Shares or BookDissenting Shares) (A) that number of shares of Parent Preferred Stock (after taking into account all shares of Company Common Stock then held by such holder under all Certificates so surrendered) to which such holder of Company Common Stock shall have become entitled pursuant to Section 3.1(a)(i) (which shall be in uncertificated book-Entry Share entry form unless a physical certificate is requested), and (B) any dividends or other distributions payable pursuant to Section 3.4(d), and the Certificate so surrendered shall forthwith be canceledcancelled. Promptly after the First Effective Time and in any event not later than the third Business Day thereafter, Parent shall cause the Exchange Agent to issue and send to each holder of uncertificated shares of Company Common Stock represented by book entry (such securities, collectively, the “Book-Entry Shares”) other than with respect to Excluded Shares or Dissenting Shares, and to each Company Noteholder, (1) that number of shares of Parent Preferred Stock (with respect to holders of Company Common Stock, after taking into account all shares of such stock then held by such holder as Book-Entry Shares) to which such holder shall have become entitled pursuant to the provisions of Section 3.1(a)(i) (which shall be in book-entry form unless a physical certificate is requested), and (2) any dividends or other distributions payable pursuant to Section 3.4(d), without such holder being required to deliver a Certificate or Company Note, or an executed letter of transmittal to the Exchange Agent, and such Book-Entry Shares shall then be cancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions, if any, payable in respect to holders of Certificates or Book-Entry Shares representing Company Common Stock. For the avoidance of doubt, until surrendered as contemplated by this Section 3.3, each Certificate, other than Excluded Shares or Dissenting Shares. Payment of , shall be deemed after the First Effective Time to represent only the right to receive the First Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate payable in respect thereof, plus any dividends or Book-Entry Shareother distributions payable pursuant to Section 3.4(d).
(c) If payment of the First Merger Consideration is requested to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, or in the case of a Company Note, other than the Person listed as the registered owner thereof on Schedule I hereto, it shall be a condition of payment that such that, in the case of a Certificate, any Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or transfer, and, in the case of Book-Entry Shares and Company Notes, that such Book-Entry Share or Company Note shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the First Merger Consideration to a Person other than the registered holder of the Certificate or such Certificate, Book-Entry Share surrendered Share, or Company Note, or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate (i) No dividends or Book-Entry Share other distributions with respect to Parent Preferred Stock with a record date after the First Effective Time shall be deemed at paid to the holder of any time after unsurrendered Certificate with respect to the Effective Time to represent only shares of Parent Preferred Stock that the holder thereof has the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares thereof until the holder thereof shall surrender such Certificate in accordance with the terms of this Article III shall be deemed to have been paid III. Following the surrender of a Certificate in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in accordance with this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments there shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors record holder thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
, (hA) None of Parentpromptly after such surrender, the Surviving Corporation, amount of any dividends or other distributions with a record date after the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation First Effective Time theretofore paid with respect to such Certificateshares of Parent Preferred Stock, and (B) at the appropriate payment date, the Paying Agent will deliver in exchange for amount of dividends or other distributions with a record date after the First Effective Time but prior to such lost, stolen or destroyed Certificate the Merger Consideration surrender and a payment date subsequent to such surrender payable in with respect thereof pursuant to this Agreementsuch shares of Parent Preferred Stock.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ra Medical Systems, Inc.)
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with designate a bank or trust company designated by Parent and that is reasonably acceptable to the Company to act as the payment agent in connection with the Merger (the “Paying Agent”). On the day of (and immediately following) Prior to the Effective Time, Parent or Merger Sub Purchaser shall deposit (deposit, or cause to be deposited) , with the Paying AgentAgent cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid pursuant to this Agreement plus cash in an amount sufficient to pay holders of Company Options and holders of the Garritan Holdback Rights in accordance with the terms of this Agreement (such cash being referred to as the “Payment Fund”). The Payment Fund shall be invested by the Paying Agent in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest, and/or (iii) money market funds investing solely in trust for a combination of the foregoing, as directed by Parent, pending payment thereof by the Paying Agent to the holders of the Shares, Company Options and Garritan Holdback Rights; provided, that no gain or loss thereon shall affect the amounts payable to the holders of Shares, Company Options or Garritan Holdback Rights following the Effective Time and Parent shall promptly deposit additional cash into the Payment Fund in an amount that is equal to the deficiency in the amount of cash required to satisfy fully all such cash payment obligations. Earnings from such investments shall be the sole and exclusive property of the Surviving Corporation, and no part of such earnings shall accrue to the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentCompany Options or Garritan Holdback Rights.
(b) As soon as reasonably practicable after The Paying Agent, promptly following the Effective Time, but in any event no later than shall mail the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail following materials to each holder of record of an outstanding whose Shares were converted pursuant to Section 3.1 into the right to receive the Merger Consideration, whether such Shares were represented by a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that (the “Certificates”) or were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), uncertificated and represented by book-entry (“Book-Entry Shares”): (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, Agent and which letter shall be in such customary form and contain have such other provisions as to which Parent or the Paying Agent and Company may reasonably specifyagree) and (ii) instructions for use in effecting the surrender of such the Certificates or Book-Entry Shares in exchange for payment of the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate for cancellation to the Paying AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal transmittal, duly executed (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with transmittal or upon the instructions thereto, and entry through a book- entry transfer agent of the surrender of such other documents as the Paying Agent may reasonably require (Book-Entry Shares on a “Proper Delivery”book-entry account statement), the holder of such Certificate or Book-Entry Share Shares shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceledShare. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration Such payment shall be made as to the holder of record promptly as practicable after following receipt of a duly executed letter of transmittal by the date of Proper Delivery Paying Agent and shall be made by either bank check or electronic wire transfer, at the option of the applicable Certificate or Book-Entry Share.
(c) holder of record. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of precedent to payment that such (x) the Certificate so surrendered shall be properly endorsed or otherwise shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that (y) the Person requesting such payment shall have paid any transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent the Surviving Corporation that such tax Tax either has been paid or is not applicable.
(d) required to be paid. Until surrendered as contemplated by this Section 3.33.2, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented cash as contemplated by such Certificate or Book-Entry Shares, as applicable, pursuant to this Section 3.1(a)3.2, without any interest thereon.
(ec) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Shares on the stock transfer books records of the Surviving Corporation Company. From and after the Effective Time, the holders of the Certificates or Book-Entry Shares that were outstanding immediately prior to the Effective TimeTime shall cease to have any rights with respect to such Shares except as otherwise provided for in this Agreement or by applicable law. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Sharesany reason, such Certificates or Book-Entry Shares they shall be canceled cancelled and exchanged as provided in this Article ARTICLE III, subject to applicable Law in the case of Dissenting Shares.
(fd) The At any time following 6 months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent shall invest to deliver to it any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
funds (g) Any portion of the Exchange Fund (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed made available to the Paying Agent and not disbursed (or for which disbursement is pending) to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) and only as general creditors thereof, for payment of thereof with respect to the Merger Consideration payable upon surrender of their Certificates or Book-Entry Shares, together with respect a duly executed letter of transmittal, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to Shares formerly represented by such any holder of a Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund Shares for Merger Consideration properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaw.
(ie) If Parent, Purchaser, the Surviving Corporation and the Paying Agent, as the case may be, shall be entitled to deduct and withhold from the relevant Merger Consideration or Offer Price otherwise payable pursuant to this Agreement to any Certificate holder of Shares such amounts that Parent, Purchaser, the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), the rules and regulations promulgated thereunder or any provision of applicable state, local or foreign law. To the extent that amounts are so withheld by Parent, Purchaser, the Surviving Corporation or the Paying Agent, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made.
(f) In the event that any Certificates shall have been lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming holder thereof, the Merger Consideration payable in respect thereof pursuant to Section 3.1; provided, however, that Parent may, in its discretion and as a condition precedent to the payment of such Certificate to be Merger Consideration, require the owners of such lost, stolen or destroyed Certificates to deliver a written indemnity agreement reasonably satisfactory to Parent and, if required reasonably deemed advisable by Parent or the Paying AgentParent, the posting by such Person of a bond in such amount sum as Parent or the Paying Agent may determine is reasonably necessary direct as indemnity against any claim that may be made against it or Parent, the Surviving Corporation or the Paying Agent with respect to such Certificate, the Paying Agent will deliver in exchange for such Certificates alleged to have been lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreementdestroyed.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a paying agent, bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), cash in an amount of cash sufficient to deliver to holders of Shares pay (i) the Merger aggregate Cash Consideration to which they are entitled and (ii) the aggregate cash consideration payable pursuant to Section 3.11.1(c) (such cash, the “Payment Fund”). Any cash deposited For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Paying Rights Agent shall hereinafter be referred unless and until such deposit is required pursuant to the terms of the CVR Agreement or by the Rights Agent. Except as otherwise provided in this Agreement, the “Exchange Fund.” The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in 1.1(c) and this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle III.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each Person who was, immediately prior to the Effective Time, a holder of record of (i) Shares represented by an outstanding certificate or outstanding certificates (“Certificates”, and such Shares, “Certificated Shares”) and to each holder of or (ii) uncertificated Shares represented by book book-entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right ), who in each case, was entitled to receive the Merger Offer Consideration with in respect thereto thereof pursuant to Section 3.1(a), (iA) in the case of holders of record of Certificated Shares, a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates pursuant to such letter of transmittal, and (B) in the case of holders of record of Book-Entry Shares, customary provisions regarding delivery of an “agent’s message” with respect to such Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate to the Paying AgentShares, together with such letter of transmittal (orwith, in the case of a Book-Entry ShareCertificated Shares, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate Certificates or Book-Entry Share Shares shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of for the Shares formerly represented by such Certificate or Book-Entry Share Shares, the Offer Consideration for each such Share, and the Certificate so surrendered such Certificates and Book-Entry Shares shall forthwith be canceledcancelled and of no further effect. No interest will be paid or accrued on any Merger Consideration payable in respect accrue for the benefit of Certificates holders of Certificated Shares or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after Shares on the date of Proper Delivery of the applicable Certificate or Book-Entry ShareOffer Consideration.
(c) If payment of the Merger Offer Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that (i) such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or that such Book-Entry Share shall be properly transferred and that (ii) the Person requesting such payment shall have (A) paid any transfer and other Taxes required by reason of the payment of the Merger Offer Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have (B) established to the satisfaction of Parent that such tax either has been paid or is Taxes are not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Offer Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicablethereof, pursuant to Section 3.1(a)this Article III, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by ParentPxxxxx, on provided that such investment shall be in obligations of, or guaranteed by, the United States of America, in commercial paper obligations of issuers organized under the Law of a daily basisstate of the United States of America, rated A-1 or P-1 or better by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Ratings Service, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or in mutual funds investing in such assets. Any interest or other income resulting from such investments investment shall be for the benefit of, and paid to to, Parent, upon demand; provided that no such investment or losses thereon shall affect the Offer Consideration payable to the holders of Shares or, if applicable, CVRs, and Parent shall promptly provide, or shall cause the Surviving Corporation to promptly provide, additional funds to the Paying Agent for the benefit of the holders of Shares to the extent necessary to satisfy the obligations of Parent and the Surviving Corporation under this Article III.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of (i) Shares irrevocably accepted for purchase in the Offer and (ii) Certificates or Book-Entry Shares one (1) year after the Effective Time (or, in the case of the Milestone Payment (and solely with respect to any portion of the Payment Fund (together with the applicable portion of any interest or other income earned thereon) that relates to the Milestone Payment), one year after the Milestone Payment Date) shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of (i) Shares irrevocably accepted for purchase in the Offer or (ii) Certificates or Book-Entry Shares who have not theretofore complied with this Article III (except to the extent representing Excluded Shares or Dissenting Shares) shall thereafter look only to Parent and the Surviving Corporation as general creditors thereof for payment of the Offer Consideration (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interestany interest thereon.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by holders of Shares at such time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of the Surviving Corporation (or, at the option of Parent, Parent), free and clear of all claims or interest of any Person previously entitled thereto.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver to such Person in exchange for such lost, stolen or destroyed Certificate the Merger Offer Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Offer Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 3.6 shall be returned to Parent, upon demand; provided that the parties acknowledge that, notwithstanding anything to the contrary in this Agreement, Parent shall not be required under this Section 3.3 or otherwise to deposit with the Paying Agent any cash to pay Offer Consideration with respect to Shares as to which the holder thereof has purported to deliver a notice or demand of appraisal that has not been withdrawn prior to the Closing Date.
Appears in 1 contract
Exchange and Payment. (a) Prior to Promptly after the First Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with a bank or trust company designated by Parent (the Paying “Exchange Agent”), in trust for the benefit of holders of shares of Company Common Stock immediately prior to the First Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), an amount book-entry shares (or certificates if requested) representing the shares of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled Parent Capital Stock issuable pursuant to Section 3.13.1(a)(i). Any In addition, Parent shall make available by depositing with the Exchange Agent, as necessary from time to time after the First Effective Time, any dividends or distributions payable pursuant to Section 3.3(d). All certificates representing shares of Parent Capital Stock, dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the First Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafter, the Surviving Corporation parties shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the First Effective Time represented outstanding Shares shares of Company Common Stock that were converted into the right to receive the First Merger Consideration with respect thereto Consideration, any dividends or distributions payable pursuant to Section 3.1(a3.3(d), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the First Merger Consideration Consideration, any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a3.3(d). Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect shares of the Shares Company Common Stock formerly represented by such Certificate (other than Excluded Shares or BookDissenting Shares) (A) that number of whole shares of Parent Capital Stock (after taking into account all shares of Company Common Stock then held by such holder under all Certificates so surrendered) to which such holder of Company Common Stock shall have become entitled pursuant to Section 3.1(a)(i) (which shall be in uncertificated book-Entry Share entry form unless a physical certificate is requested), and (B) any dividends or other distributions payable pursuant to Section 3.3(d), and the Certificate so surrendered shall forthwith be canceledcancelled. Promptly after the First Effective Time and in any event not later than the third Business Day thereafter, Parent shall cause the Exchange Agent to issue and send to each holder of uncertificated shares of Company Common Stock represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares or Dissenting Shares, (1) that number of whole shares of Parent Capital Stock to which such holder of Book-Entry Shares shall have become entitled pursuant to the provisions of Section 3.1(a)(i) (which shall be in book- entry form unless a physical certificate is requested), and (2) any dividends or other distributions payable pursuant to Section 3.3(d), without such holder being required to deliver a Certificate or an executed letter of transmittal to the Exchange Agent, and such Book-Entry Shares shall then be cancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made Until surrendered as promptly as practicable after the date of Proper Delivery of the applicable contemplated by this Section 3.3, each Certificate or Book-Entry ShareShare shall be deemed after the First Effective Time to represent only the right to receive the First Merger Consideration payable in respect thereof, any dividends or other distributions payable pursuant to Section 3.3(d).
(c) If payment of the First Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the First Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate (i) No dividends or Book-Entry Share other distributions with respect to Parent Capital Stock with a record date after the First Effective Time shall be deemed at paid to the holder of any time after unsurrendered Certificate with respect to the Effective Time to represent only shares of Parent Capital Stock that the holder thereof has the right to receive upon the Merger Consideration payable in respect of Shares theretofore represented by surrender thereof until the holder thereof shall surrender such Certificate or Book-Entry Sharesin accordance with this Article III. Following the surrender of a Certificate in accordance with this Article III, as applicable, pursuant there shall be paid to Section 3.1(a)the record holder thereof, without interest, (A) promptly after such surrender, the amount of any interest thereondividends or other distributions with a record date after the First Effective Time theretofore paid with respect to such whole shares of Parent Capital Stock, and (B) at the appropriate payment date, the amount of dividends or other distributions with a record date after the First Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of Parent Capital Stock.
(eii) All Merger Consideration delivered upon Notwithstanding anything in the surrender for exchange foregoing to the contrary, holders of Certificates or Book-Entry Shares in accordance with the terms who are entitled to receive shares of Parent Capital Stock under this Article III shall be deemed to have been paid in full satisfaction (A) at the time of all rights pertaining to payment of such Parent Capital Stock by the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective TimeExchange Agent under Section 3.3(b), the stock transfer books amount of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, dividends or other distributions with a record date after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the First Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation paid with respect to such Certificatewhole shares of Parent Capital Stock, and (B) at the appropriate payment date, the Paying Agent will deliver in exchange for such lost, stolen amount of dividends or destroyed Certificate other distributions with a record date after the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available First Effective Time but prior to the Paying time of such payment by the Exchange Agent pursuant under Section 3.3(b) and a payment date subsequent to the time of such payment by the Exchange Agent under Section 3.3(a3.3(b) payable with respect to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demandsuch whole shares of Parent Capital Stock.
Appears in 1 contract
Exchange and Payment. (a) Prior to At the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Sharesthe Stockholders, cash in an amount of cash sufficient to deliver to holders of Shares pay the Closing Merger Consideration due to which they are entitled pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as Stockholders (such cash, the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this AgreementArticle. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(gb) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year Promptly after the Effective Time shall be delivered to Parentand in any event not later than the third Business Day thereafter, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of a certificate (the “Certificates”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive Merger Consideration (i) a letter of transmittal (which shall be in customary form) and (ii) instructions for use in effecting the surrender of such Certificates in exchange for the Merger Consideration. At its option, the Company may, prior to the Effective Time, provide to any holder of Shares (A) a letter of transmittal (which shall be in customary form) and (B) instructions for use in effecting the surrender of such Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Paying Agent (which such surrender may occur at the Closing), together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require, the holder of such Certificate shall be entitled to receive in exchange therefor the Closing Per Share Merger Consideration for each Share formerly represented by such Certificate (subject to abandoned property, escheat or other similar Lawsdeduction for any required withholding Tax), as general creditors thereof, for payment and the Certificate so surrendered shall forthwith be cancelled. Each such holder shall also be entitled to any amounts that may be payable in the future in respect of the Merger Consideration with respect to Shares formerly represented by such Certificate from the Escrow Funds as provided in this Agreement and the Escrow Agreement and on account of the Adjustment Amount, at the respective times and subject to the contingencies specified herein and therein. No interest will be paid or Book-Entry Shareaccrued for the benefit of holders of Certificates on the Merger Consideration.
(c) If payment in respect of any Certificate is to be made to a Person other than the Person in whose name such Certificate is registered, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, that the signatures on such Certificate or any related stock power shall be properly guaranteed and that the Person requesting such payment shall have established to the satisfaction of Parent and the Paying Agent that any transfer and other Taxes required by reason of such payment to a Person other than the registered holder of such Certificate have been paid or are not applicable. Until surrendered in accordance with the provisions of this Section, any Certificate (other than Certificates representing Cancelled Shares or Dissenting Shares) shall be deemed, at any time after the Effective Time, to represent only the right to receive the portion of the Merger Consideration payable with respect thereto, in cash, without interest, as contemplated herein.
(hd) None At the Effective Time, the stock transfer books of Parentthe Company shall be closed and there shall be no further registration of transfers of any shares of capital stock thereafter on the records of the Company. If, after the Effective Time, a Certificate (other than one representing Cancelled Shares) is presented to the Surviving Corporation, the Paying Agent or any other Person it shall be liable to any Person cancelled and exchanged as provided in respect this Section.
(e) All cash paid upon conversion of the Shares in accordance with the terms of this Article and all cash from deposited with the Exchange Fund properly delivered to a public official Escrow Agent pursuant to this Article shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares. From and after the Effective Time, the holders of Certificates shall cease to have any rights with respect to Shares represented thereby, except as otherwise provided herein or by applicable abandoned property, escheat or similar Law.
(if) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lostholder thereof, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect shall pay or cause to such Certificate, the Paying Agent will deliver be paid in exchange for such lost, stolen or destroyed Certificate the relevant portion of the Merger Consideration payable in respect thereof pursuant to this AgreementSection for the Shares represented thereby; provided, however, that the Surviving Corporation or the Paying Agent may, in their reasonable discretion, require the delivery of a satisfactory indemnity (or, if indemnification would not be reasonably adequate, require delivery of a bond in such sum as the Surviving Corporation or Parent may reasonably direct as indemnity).
(jg) Any portion of At any time following the Merger Consideration date that is six months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (including any interest or other income received with respect thereto) that had been made available to the Paying Agent and that have not been disbursed to holders of Certificates, and any Certificates or other documents relating to the Merger in its possession, and thereafter the holders of Certificates shall be entitled to look to Parent with respect to any portion of the Merger Consideration payable upon due surrender of their Certificates, without interest; provided that any such portion of the Merger Consideration payable from the Escrow Funds shall be held and distributed to the Persons entitled thereto in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Adjustment Amount to which the Stockholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding anything to the contrary in this Section, to the fullest extent permitted by applicable Law, none of the Paying Agent, Parent or the Surviving Corporation shall be liable to any holder of a Certificate for any amount properly delivered to a public official pursuant to Section 3.3(a) to pay for Shares for which appraisal rights any applicable abandoned property, escheat or similar Law. If any Certificates shall not have been perfected as described exchanged prior to four years after the Effective Time (or immediately prior to such earlier date on which the related Merger Consideration would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration in Section 3.5 shall be returned respect thereof shall, to Parentthe extent permitted by applicable Law, upon demandbecome the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Neustar Inc)
Exchange and Payment. (a) Prior to Promptly after the Effective Time, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), cash in an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled pursuant to in accordance with Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as 3.1(a) (such cash, the “Exchange Payment Fund.” The Exchange ”). Except as otherwise provided in this Agreement, the Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle III.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Shares formerly represented by such Certificate (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the third Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to issue and send to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares and Dissenting Shares, a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.33.4, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicablethereof, pursuant to Section 3.1(a)this Article III, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year nine months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III (except to the extent representing Excluded Shares or Dissenting Shares) shall thereafter look only to the Surviving Corporation as general creditors thereof for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a3.1(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 3.6 shall be returned to Parent, upon demand; provided that the parties acknowledge that, notwithstanding anything to the contrary in this Agreement, Parent shall not be required under this Section 3.4 or otherwise to deposit with the Paying Agent any cash to pay Merger Consideration with respect to Shares as to which its holder has purported to deliver a notice or demand of appraisal that has not been withdrawn prior to the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Intersections Inc)
Exchange and Payment. (a) Prior to At the First Effective Time, Parent shall issue and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of shares of Company Capital Stock immediately prior to the First Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), an amount book-entry shares representing the shares of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled Parent Common Stock issuable pursuant to Section 3.13.1(a)(i). Any All certificates representing shares of Parent Common Stock, and any dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the First Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Parties shall cause the Paying Exchange Agent to mail to each holder of record of an a certificate that immediately prior to the First Effective Time represented outstanding certificate or outstanding certificates shares of Company Capital Stock (collectively, the “Certificates”) and to each holder of record of uncertificated Shares shares of Company Capital Stock represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares ), in each case, that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a)Consideration, (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the any Certificates held by such Person shall pass, only upon proper delivery of such Certificates, if any, and identification of the Certificates Book-Entry Shares, if any, to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) ), and (ii) instructions for use in effecting the surrender of any such Certificates or and identifying such Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender of a Certificate and identification of the Book-Entry Shares, as applicable, to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (including a “Proper Delivery”duly completed and validly executed IRS Form W-9 or IRS Form W-8, as may be applicable, by each holder of such Certificate or Book-Entry Share), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect shares of the Shares Company Capital Stock formerly represented by such Certificate or Book-Entry Share (other than Excluded Shares or Dissenting Shares) that number of whole shares of Parent Common Stock (after taking into account all shares of Company Capital Stock then held by such holder under all Certificates so surrendered and the Book-Entry Shares so identified) to which such holder of Company Capital Stock shall have become entitled pursuant to Section 3.1(a)(i) (which shall be in uncertificated book-entry form) and any Certificate so surrendered surrendered, together with any Book-Entry Shares, shall forthwith be canceledcancelled. No interest will Until so surrendered as contemplated by this Section 3.4, each Certificate or Book-Entry Share shall be paid or accrued on any deemed after the First Effective Time to represent only the right to receive the portion of the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Sharethereof.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Subject to Section 3.33.6, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Sharesshares of Company Capital Stock. At the First Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation shares of the Shares Company Capital Stock that were outstanding immediately prior to the First Effective Time. If, after the First Effective Time, Certificates are presented to the Surviving Corporation Company or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(ge) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year 12 months after the First Effective Time shall shall, upon demand of Parent, be delivered to Parent, upon demand, the Surviving Entity and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III (except to the extent representing Excluded Shares or Dissenting Shares) shall thereafter look only to the Surviving Corporation Entity, as general creditors thereof, for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(hf) None of Parent, the Surviving CorporationCompany, the Paying Surviving Entity, the Exchange Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund shares of Parent Common Stock properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been exchanged prior to two years after the First Effective Time (or immediately prior to such earlier date on which the related Merger Consideration would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration in respect thereof shall, to the extent permitted by applicable Law, become the property of the Surviving Entity, free and clear of all claims or interest of any Person previously entitled thereto.
(ig) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Xxxxxx on a daily basis. Any interest and other income resulting from such investments shall be paid to Parent.
(h) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed anddestroyed, and if required by Parent or the Paying AgentSurviving Entity, the posting by such Person of an indemnity agreement, or at the election of Parent or the Exchange Agent, a bond in a customary amount, then the Exchange Agent will, if such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificateholder has otherwise delivered a properly executed and duly completed letter of transmittal, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parentnumber of shares of Company Capital Stock formerly represented by such lost, upon demandstolen or destroyed Certificate.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company Company) with the Company’s transfer agent to act as an exchange agent (the “Paying Exchange Agent”)) for the purpose of paying the Merger Consideration payable in respect of Shares converted into Merger Consideration pursuant to Section 2.1(a) and the Fractional Share Cash Consideration, in accordance with Section 2.6. On the day Prior to or as of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Exchange Agent (i) cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver make all payments of Cash Consideration in respect of Shares pursuant to Section 2.1(a), (ii) the aggregate Fractional Share Cash Consideration payable in the Merger to holders of Shares and (iii) evidence of Parent Common Stock in book-entry form representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Stock Consideration payable in the Merger Consideration to which they are entitled pursuant to Section 3.1. Any holders of Shares (such cash deposited and book-entry shares, together with the Paying Agent shall hereinafter be referred to as any dividends or distributions with respect thereto, the “Exchange Fund.” ”). The Exchange Fund shall not be used for any purpose other than to fund payments due in respect of Shares converted into Merger Consideration pursuant to Section 3.1(a2.1(a), except as provided in this AgreementAgreement (including payment of the Fractional Share Cash Consideration). Parent The Surviving Corporation shall pay all fees charges and expenses of the Paying AgentExchange Agent incurred by it in connection with the exchange of Shares for the Merger Consideration.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or in exchange for the Merger Consideration payable with respect thereto pursuant to Section 2.1(a) and the Fractional Share Cash Consideration payable pursuant to Section 2.6. Upon surrender of a Certificate to the Exchange Agent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled and the shares of Parent Common Stock issued in connection with the foregoing shall be in non-certificated book-entry form. Promptly after the Effective Time and in any event not later than the third Business Day following the Effective Time, the Surviving Corporation shall cause the Exchange Agent to mail to each holder of record immediately prior to the Effective Time of uncertificated Shares represented by book entry (“Book-Entry Shares”) customary instructions for use in effecting the surrender of Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)2.1(a) and the Fractional Share Cash Consideration payable pursuant to Section 2.6. Upon surrender receipt by the Exchange Agent of a Certificate to the Paying Agent, together with such letter of transmittal (or, an “agent’s message” in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions theretocustomary form, and such other documents evidence of surrender, if any, as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)request in respect of Book-Entry Shares, the holder of such Certificate or Book-Entry Share thereof shall be entitled to receive in exchange therefor therefore the Merger Consideration that such holder is entitled to receive and the Fractional Share Cash Consideration payable pursuant to Section 3.1(a) in 2.6 with respect of the Shares to each Share formerly represented by such Certificate or Book-Entry Share Shares (subject to deduction for any required withholding Tax) and the Certificate so surrendered shares of Parent Common Stock issued in connection with the foregoing shall forthwith be canceledin non-certificated book-entry form. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration or Fractional Share Cash Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only cash in the amount equal to the aggregate Cash Consideration that such holder has the right to receive pursuant to Section 2.1(a) and this Article II, book-entry shares representing the Merger aggregate Stock Consideration payable that such holder has the right to receive pursuant to Section 2.1(a) and this Article II, cash in lieu of any fractional shares of Parent Common Stock such holder is entitled to receive pursuant to Section 2.6 and any dividends or other distributions such holder is entitled to receive pursuant to Section 2.3(k) below, in each case, in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Exchange Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (Eastern time) on the Closing Date, the Exchange Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Cash Consideration (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. (Eastern time) on the Closing Date, the Exchange Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) The Merger Consideration, the Fractional Share Cash Consideration delivered and any dividends or other distributions payable pursuant to Section 2.3(k) paid upon the surrender for exchange of Certificates or Book-Book Entry Shares in accordance with the terms of this Article III II in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(fg) The Paying Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Exchange Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder (but subject to Section 2.4), Parent shall cause the Surviving Corporation to promptly deposit cash into the Exchange Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Corporation.
(gh) Any portion of At any time following the date that is 12 months after the Effective Time, the Surviving Corporation shall be entitled to require the Exchange Fund Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Exchange Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), ) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration (and any dividends or other distributions payable with respect thereto pursuant to Shares formerly represented by such Section 2.3(k) and cash in lieu of any fractional shares payable with respect thereto pursuant to Section 2.6) payable upon due surrender of their Certificate or Book-Entry ShareShares. Notwithstanding the foregoing, without interest.
(h) None of Parent, neither the Surviving Corporation, the Paying Agent or any other Person Corporation nor Parent shall be liable to any Person in respect holder of cash from the Exchange Fund properly delivered Shares for any amounts paid to a public official pursuant to any applicable abandoned property, escheat escheat, or similar Laws. Any amounts remaining unclaimed by holders of the Shares two years after the Effective Time, or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of the Surviving Corporation (or, at the option of Parent, Parent) free and clear of any claims or interest of any Person previously entitled thereto.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required holder’s compliance with the replacement requirements established by the Paying Agent (orExchange Agent, including, if no such affidavit is required by the Paying Agentnecessary, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting an indemnity by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against for any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration, the Fractional Share Cash Consideration and any dividends or other distributions payable with respect thereto pursuant to Section 2.3(k), payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.3(a) to pay for in respect of any Dissenting Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
(k) No dividends or other distributions with respect to shares of Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate or Book Entry Share with respect to the shares of Parent Common Stock that the holder thereof has the right to receive upon the surrender thereof, and no cash payment in lieu of fractional shares of Parent Common Stock shall be paid to any such holder pursuant to Section 2.6, in each case until the holder of such Certificate or Book Entry Share shall have surrendered such Certificate or Book Entry Share in accordance with this Article II. Following the surrender of any Certificate or Book Entry Share, there shall be paid to the holder of the Certificate or Book Entry Share representing shares of Parent Common Stock issued in exchange therefor, without interest, (A) at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock and the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.6 and (B) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
Appears in 1 contract
Samples: Merger Agreement (Infrastructure & Energy Alternatives, Inc.)
Exchange and Payment. (a) Prior At or prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub Northrim shall deposit (or cause to be deposited) with American Stock Transfer & Trust Company, LLC (or such other transfer agent as Northrim shall designate in good faith) (the Paying “Exchange Agent”), in trust for the benefit of holders of Shares, certificates representing the shares of Northrim Common Stock equal to the Total Stock Amount and cash in an amount of cash sufficient equal to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Total Cash Amount in accordance with Section 3.1. Any cash deposited with the Paying Agent shall 3.1 (collectively hereinafter be referred to as the “Exchange Fund.” ”). The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)3.1, except as expressly provided in this Agreement. Parent At the Closing, Northrim shall pay all fees and expenses deliver to Alaska Pacific a certificate of the Paying AgentExchange Agent confirming receipt of the Exchange Fund.
(b) As soon as reasonably practicable after the Effective Time, but in any event no not later than the third five (3rd5) Business Day Days thereafter, the Surviving Corporation shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding certificate Certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately Certificates who did not submit a properly completed Election Form or who had revoked a properly completed Election Form prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), Election Deadline (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent Northrim or the Paying Exchange Agent may reasonably specify) ), and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Certificates. Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require require, or in the case of a holder who timely submitted a properly completed Election Form (a “Proper Delivery”)and had not revoked such Election Form) by the Election Deadline, the holder of such Certificate or Book-Entry Share shall be entitled to promptly receive in exchange therefor the Common Stock Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of on the Common Stock Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Common Stock Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Common Stock Merger Consideration to a such Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent Northrim that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3herein, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Common Stock Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicableCertificate, pursuant to Section 3.1(a)3.1, without any interest thereon.
(e) All The Common Stock Merger Consideration delivered paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry SharesCertificates. At the Effective Time, the stock transfer books of the Company Alaska Pacific shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective TimeCorporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Sharestransfer, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III3, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent Notwithstanding any other provision of this Agreement, no fractional shares of Northrim Common Stock will be issued and any holder of Shares entitled to receive a fractional share of Northrim Common Stock but for this Section 3.3(f) shall invest any be entitled to receive a cash included payment in lieu thereof, which payment shall be calculated by the Exchange Fund as directed by Parent, Agent and shall represent such holder’s proportionate interest in a share of Northrim Common Stock based on a daily basis. Any interest the Northrim Average Share Price.
(g) No dividends or other income resulting from such investments distributions declared or made after the Effective Time with respect to Northrim Common Stock with a record date after the Effective Time shall be paid to Parentthe holder of any unsurrendered Certificate who is to receive Northrim Common Stock pursuant to the provisions hereof until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, upon demandfollowing surrender of any such Certificate by a holder receiving Northrim Common Stock pursuant to the provisions hereof, there shall be paid to the record holder of the certificates representing whole shares of Northrim Common Stock issued in exchange therefore, without interest, (i) at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Northrim Common Stock to which such holder is entitled pursuant to Section 3.3(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Northrim Common Stock, 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 Northrim Common Stock.
(gh) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the shares of Northrim Common Stock held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect to such shares of Northrim Common Stock for the account of the Persons entitled thereto. Former shareholders of record of Alaska Pacific who are to receive shares of Northrim Common Stock pursuant to the provisions hereof shall be entitled to vote after the Effective Time at any meeting of Northrim shareholders the number of whole shares of Northrim Common Stock into which their respective Shares are converted, regardless of whether such holders have exchanged their Certificates for certificates representing Northrim Common Stock in accordance with the provisions of this Agreement.
(i) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one six (16) year months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demanddemand of Northrim, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III 3 shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of such holder’s pro rata portion of the Common Stock Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry ShareCertificate, without interest.
(hj) None of ParentNorthrim, the Surviving Corporation, the Paying Agent Exchange Agent, or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Fund being properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ik) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent)Northrim, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent Northrim or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent Northrim or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Common Stock Merger Consideration payable in with respect thereof pursuant to this Agreementshares formerly represented by such Certificate, without interest.
(jl) Any portion of the Merger Consideration Exchange Fund made available to the Paying Exchange Agent pursuant to Section 3.3(a) with respect to pay for any Dissenting Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to ParentNorthrim, upon demand.
(m) Northrim shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code or any other applicable state, local or foreign Tax law. To the extent that amounts are so withheld by Northrim, such withheld amounts (i) shall be remitted by Northrim to the applicable Governmental Entity, and (ii) shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made by Northrim.
(n) Notwithstanding anything in this Agreement to the contrary, if, between the date of this Agreement and the Effective Time, the issued and outstanding shares of Northrim Common Stock or securities convertible or exchangeable into or exercisable for shares of Northrim Common Stock, shall have been changed into a different number of shares or a different class by reason of any reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, redenomination, merger, issuer tender or exchange offer, or other similar transaction, then the Total Stock Amount and associated collar prices of Northrim Common Stock, as applicable, shall be equitably adjusted and as so adjusted shall, from and after the date of such event, be the Total Stock Amount and associated collar prices of Northrim Common Stock, as applicable.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying "Exchange Agent”"). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Exchange Agent, in trust for the benefit of holders of Shares, (i) certificates representing a number of shares of Parent Common Stock equal to the Maximum Stock Merger Consideration issuable to the Stockholders pursuant to Section 3.1 and (ii) an amount of cash sufficient to deliver to holders of Shares the Maximum Cash Merger Consideration to which they are entitled pursuant to Section 3.1. Parent further agrees to provide to the Exchange Agent, from time to time as needed, immediately available funds sufficient to pay any dividends and other distributions pursuant to Section 3.3(c). Any cash and certificates representing Parent Common Stock deposited with the Paying Exchange Agent shall hereinafter be referred to as the “"Exchange Fund.” " The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all the fees and expenses of the Paying Exchange Agent.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“"Certificates”") and to each holder of uncertificated Shares represented by book entry (“"Book-Entry Shares”") that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “"Proper Delivery”"), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor (A) one or more shares of Parent Common Stock representing, in the aggregate, the whole number of shares that such holder is entitled to receive pursuant to Section 3.1 (after taking into account any applicable proration or other adjustments and aggregating any fractional shares resulting from all Shares surrendered by such holder pursuant to the Merger), (B) the Cash Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) 3.1 in respect of the Shares represented by such Certificate or Book-Entry Share and/or (C) a check in the amount of the cash that such holder is entitled to be paid in respect of any fractional shares of Parent Common Stock pursuant to Section 3.3(e) and dividends and other distributions pursuant to Section 3.3(d), if any, and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon. No dividends or other distributions declared or made after the Effective Time with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to any holder of any unsurrendered Certificate or Book-Entry Share who is entitled to receive Parent Common Stock upon such surrender, and no cash payment in respect of fractional shares shall be paid to any such holder pursuant to Section 3.3(e), unless and until the holder of such Certificate or Book-Entry Share shall surrender such Certificate or return the form of letter of transmittal in the case of a Book-Entry Share, in accordance with Section 3.3(b). Subject to the effect of escheat, Tax or other applicable Laws, following surrender of any such Certificate or return of the form of letter of transmittal in the case of a Book-Entry Share, there shall be paid to the holder of the Certificates or Book-Entry Share that are entitled to shares of Parent Common Stock, without interest, (i) an amount equal to the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock for which the Shares represented by the Certificates or Book-Entry Shares were exchanged for, and (ii) at the appropriate payment date, an amount equal to the amount of dividends or other distributions, with a record date after the Effective Time but prior to the date of surrender of such holder's Certificate or return of the form of letter of transmittal in the case of a Book-Entry Share, and a payment date occurring after the date of surrender, payable with respect to such whole shares of Parent Common Stock which the Shares represented by the Certificates or Book-Entry Shares were exchanged for.
(e) In lieu of any fractional share of Parent Common Stock that otherwise would be issuable pursuant to the Merger, each holder of Shares who otherwise would be entitled to receive a fraction of a share of Parent Common Stock pursuant to the Merger will be paid an amount in cash (without interest) equal to such holder's respective proportionate interest in the proceeds from the sale or sales in the open market by the Exchange Agent for the Merger, on behalf of all such holders, of the aggregate fractional shares of Parent Common Stock deemed issued pursuant to the Merger. As soon as practicable following the Closing, the Exchange Agent shall determine the excess of (i) the number of shares of Parent Common Stock issuable to the holders of Shares pursuant to the Merger (including fractional shares), over (ii) the number of shares of Parent Common Stock to be distributed to former holders of Shares pursuant to the Merger (excluding fractional shares) (such excess being collectively called the "Excess Merger Parent Stock"). The Exchange Agent, as agent and trustee for the former holders of Shares, shall as promptly as reasonably practicable sell the Excess Merger Parent Stock at the prevailing prices on the NYSE. The sales of the Excess Merger Parent Stock by the Exchange Agent shall be executed on the NYSE through one or more member firms of the NYSE and shall be executed in round lots to the extent practicable. Parent shall pay all commissions, transfer taxes and other out-of-pocket transaction costs, including the expenses and compensation of the Exchange Agent and costs associated with calculating and distributing the respective cash amounts payable to the applicable former holders of Shares, incurred in connection with such sales of Excess Merger Parent Stock. Until the proceeds of such sales have been distributed to the former holders of Shares to whom fractional shares of Parent Common Stock otherwise would have been issued in the Offer, the Exchange Agent will hold such proceeds in trust for such former holders. As soon as practicable after the determination of the amount of cash to be paid to former holders of Shares in lieu of any fractional shares of Parent Common Stock, the Exchange Agent shall distribute such amounts to such former holders.
(f) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(fg) The Paying Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(gh) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year six months after the Effective Time shall be delivered to the Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(hi) None of Parent, the Surviving Corporation, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ij) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(jk) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior Parent shall issue and deposit (or cause to the Effective Time, Parent and Merger Sub shall enter into an agreement be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Exchange Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of shares of Company Capital Stock immediately prior to the First Effective Time (other than holders to the extent they hold Excluded Shares or Dissenting Shares), an amount book-entry shares (or certificates if requested) representing the shares of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled Parent Capital Stock issuable pursuant to Section 3.13.1(a)(i). Any In addition, Parent shall make available by depositing with the Exchange Agent, as necessary from time to time after the First Effective Time any dividends or other distributions payable pursuant to Section 3.3(e) (which for clarity shall not include the Pre-Closing Cash Dividend). All certificates representing shares of Parent Capital Stock, and any dividends, distributions and cash deposited with the Paying Exchange Agent shall are hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.”
(b) As soon as reasonably practicable after the First Effective Time, but Time and in any event no not later than the third tenth (3rd10th) Business Day thereafterprior to the anticipated Closing Date, the Surviving Corporation parties shall cause the Paying Exchange Agent to mail to each holder of record of an a certificate that immediately prior to the First Effective Time represented outstanding certificate or outstanding certificates shares of Company Capital Stock (collectively, the “Certificates”) and to each holder of record of uncertificated Shares shares of Company Capital Stock represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration (together with respect thereto any dividends or other distributions payable pursuant to Section 3.1(a3.3(e), but not the Pre-Closing Cash Dividend), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the any Certificates held by such Person shall pass, only upon proper delivery of such Certificates, if any, and identification of the Certificates Book-Entry Shares, if any, to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of any such Certificates or and identifying such Book-Entry Shares in exchange for the Merger Consideration (together with any dividends or other distributions payable with respect thereto pursuant to Section 3.1(a3.3(e), but not the Pre-Closing Cash Dividend). Upon surrender of a Certificate and identification of the Book-Entry Shares, as applicable, to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect shares of the Shares Company Capital Stock formerly represented by such Certificate or Book-Entry Share (other than Excluded Shares or Dissenting Shares) (A) that number of whole shares of Parent Capital Stock (after taking into account all shares of Company Capital Stock then held by such holder under all Certificates so surrendered and Book-Entry Shares so identified) to which such holder of Company Capital Stock shall have become entitled pursuant to Section 3.1(a)(i) (which shall be in uncertificated book-entry form unless a physical certificate is requested), and (B) any dividends or other distributions payable pursuant to Section 3.3(e) (but not the Pre-Closing Cash Dividend), and any Certificate so surrendered surrendered, together with any Book-Entry Shares, shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration unpaid dividends and distributions, if any, payable in respect to holders of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made Until surrendered as promptly as practicable after the date of Proper Delivery of the applicable contemplated by this Section 3.3, each Certificate or Book-Entry ShareShare shall be deemed after the First Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof (together with any dividends or other distributions payable pursuant to Section 3.3(e), but not the Pre-Closing Cash Dividend).
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered Holders of Company Capital Stock, in their capacities as contemplated by this Section 3.3such, each Certificate or shall not be entitled to any portion of the Pre-Closing Cash Dividend, and the Certificates and Book-Entry Share Shares shall be deemed at not represent any time after the Effective Time to represent only the right to receive any portion of the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or BookPre-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereonClosing Cash Dividend.
(e) All Merger Consideration delivered (i) No dividends or other distributions with respect to Parent Capital Stock with a record date after the First Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Capital Stock that the holder thereof has the right to receive upon the surrender for exchange of Certificates or Book-Entry Shares thereof until the holder thereof shall surrender such Certificate in accordance with the terms of this Article III shall be deemed to have been paid III. Following the surrender of a Certificate in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in accordance with this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments there shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors record holder thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
, (hA) None of Parentpromptly after such surrender, the Surviving Corporation, amount of any dividends or other distributions with a record date after the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation First Effective Time theretofore paid with respect to such Certificatewhole shares of Parent Capital Stock, and (B) at the appropriate payment date, the Paying Agent will deliver in exchange for amount of dividends or other distributions with a record date after the First Effective Time but prior to such lost, stolen or destroyed Certificate the Merger Consideration surrender and a payment date subsequent to such surrender payable in with respect thereof pursuant to this Agreementsuch whole shares of Parent Capital Stock.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to Promptly (and in any event within two Business Days) after the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with a bank or trust company designated by Parent (the “Paying Agent”), in trust for the benefit of holders of Shares immediately prior to the Effective Time (other than holders to the extent they hold Excluded Shares, Dissenting Shares or Company Restricted Stock Awards), cash in an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled payable pursuant to Section 3.1. Any cash deposited with the Paying Agent shall hereinafter be referred to as 2.1(a) (such cash, the “Exchange Payment Fund.” The Exchange ”). Except as otherwise provided in this Agreement, the Payment Fund shall not be used for any purpose other than to fund payments due pursuant to this Article II. The Payment Fund will be invested by the Paying Agent as directed by Parent, in its sole discretion, pending payment thereof by the Paying Agent to the holders of Shares. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 3.1(a2.4), except as provided Parent shall promptly deposit cash into the Payment Fund in this Agreementan amount equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Earnings from such investments will be the sole and exclusive property of Parent, and no part of such earnings will accrue to the benefit of holders of Shares. Parent shall pay all fees charges and expenses of the Paying AgentAgent in connection with the exchange of Shares for the Merger Consideration.
(b) As soon as reasonably practicable (and in any event within five Business Days) after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary such form and contain such other provisions as Parent or Parent, the Paying Agent and the Company may reasonably specifyagree) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for payment of the Merger Consideration payable with respect thereto pursuant Consideration, in form and substance reasonably acceptable to Section 3.1(a)the Company. Upon surrender of a Certificate for cancellation to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor for the Shares formerly represented by such Certificate (other than Excluded Shares, Dissenting Shares and Company Restricted Stock Awards) the Merger Consideration for each such Share (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time, the Surviving Corporation shall cause the Paying Agent to issue and send to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), other than with respect to Excluded Shares, Dissenting Shares and Company Restricted Stock Awards, a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share Shares (subject to deduction for any required withholding Tax), without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition precedent of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable. Payment of the Merger Consideration with respect to Book-Entry Shares will only be made to the Person in whose name such Book-Entry Shares are registered.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share (other than Dissenting Shares and Company Restricted Stock Awards) shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, thereof pursuant to Section 3.1(a)this Article II, without any interest thereon.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject the delivery of all documents required hereunder and to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demand, and any remaining holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III (except to the extent representing Dissenting Shares or Company Restricted Stock Awards) shall thereafter look only to the Surviving Corporation as general creditors thereof for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Lawslaws), as general creditors thereof, without interest and subject to deduction for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interestany required withholding Tax.
(hg) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been exchanged prior to two years after the Effective Time (or immediately prior to such earlier date on which the related Merger Consideration would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration in respect thereof shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(ih) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(ji) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a2.1(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 2.5 shall be returned to Parent, upon demand; provided that the parties acknowledge that, notwithstanding anything to the contrary in this Agreement, Parent shall not be required under this Section 2.3 or otherwise to deposit with the Paying Agent any cash to pay Merger Consideration with respect to Shares as to which its holder has purported to deliver a notice or demand of appraisal that has not been withdrawn prior to the Closing Date.
Appears in 1 contract
Exchange and Payment. (a) Prior At or prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub HomeStreet shall deposit (or cause to be deposited) with U.S. Bank Corporate Trust Services (the Paying “Exchange Agent”), in trust for the benefit of holders of Shares, and shall instruct the Exchange Agent to timely pay and distribute, sufficient (i) shares of HomeStreet Common Stock to permit prompt delivery of the Stock Component; and (ii) cash in an amount of cash equal to the Cash Component plus an amount sufficient to deliver to holders permit prompt payment of Shares the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited with in lieu of fractional shares of HomeStreet Common Stock that otherwise would result from the Paying Agent shall hereinafter be referred to as allocation of the “Stock Component (all such items, together, the ”Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a”), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable after the Effective Time, but and in any event no later than the third five (3rd5) Business Day thereafterDays after the Effective Date, the Surviving Corporation HomeStreet shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated any Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates Shares held by such Person shall pass, only upon proper delivery of the Certificates certificates or electronic record representing to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent HomeStreet or the Paying Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate Shares to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share Shares shall be entitled to receive in exchange therefor the Merger Consideration that to be paid in consideration for such holder is entitled Shares (subject to receive pursuant to Section 3.1(a) in respect of deduction for any required withholding Tax), and the Shares represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued for the benefit of holders of Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share Shares is registered, it shall be a condition of payment that such Certificate Shares so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a such Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent HomeStreet that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.33.2, each Certificate or Book-Entry Share Shares shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares paid in accordance with the terms of this Article III 3 shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Sharessurrendered in respect thereof. At Upon consummation of the Effective TimeMerger, the stock transfer books of the Company OCBB shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective TimeResulting Bank. If, after the Effective Time, Certificates certificates purporting to represent Shares are presented to HomeStreet, the Surviving Corporation Resulting Bank, or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Sharestransfer, such Certificates or Book-Entry Shares certificates shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares3.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one twelve (112) year months after the Effective Time shall be delivered to Parent, HomeStreet upon demanddemand of HomeStreet, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III 3 shall thereafter look only to the Surviving Corporation HomeStreet (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry ShareShares, without interest.
(hg) None of ParentHomeStreet, the Surviving CorporationResulting Bank, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ih) If any Certificate certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent)HomeStreet, of that fact by the Person claiming such Certificate certificate to be lost, stolen or destroyed and, if required by Parent HomeStreet or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent HomeStreet or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it it, HomeStreet or the Surviving Corporation Resulting Bank with respect to such Certificatecertificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate certificate the Merger Consideration payable in with respect thereof pursuant to this AgreementShares formerly represented by such certificate, without interest.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (HomeStreet, Inc.)
Exchange and Payment. (a) Prior On or prior to the Effective TimeClosing Date, Parent and Merger Sub shall enter into an agreement deposit (or cause to be deposited) with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “"Paying Agent”"). On the day of (and immediately following) the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares, cash in an amount of cash sufficient equal to deliver to holders of Shares the aggregate Merger Consideration to which they are entitled pursuant to in accordance with Section 3.1. Any 2.1(a) (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange "Payment Fund.” "). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a2.1(a), except as provided in this Agreement. Parent shall pay all fees Section 2.3(f) with respect to interest and expenses of the Paying Agentother income and Section 2.3(g).
(b) As soon as reasonably practicable Promptly after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, Parent and the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that person who was, immediately prior to the Effective Time represented outstanding Time, a holder of record of Shares that were converted into the right entitled to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person Certificate(s) or Book-Entry Shares shall pass, only upon proper delivery of the Certificates Certificate(s) (or affidavits of loss in lieu of such Certificates) or transfer of Book-Entry Shares to the Paying Agent, and which letter shall be in customary form Agent and contain such other provisions as Parent or the Paying Agent may reasonably specifyspecify and that are reasonably acceptable to the Company) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares pursuant to such letter of transmittal in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Consideration. Upon surrender to the Paying Agent of a Certificate to for cancellation or receipt of an "agent's message" by the Paying AgentAgent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-Entry Shares, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may be reasonably require (a “Proper Delivery”)required pursuant to such instructions, the holder of such Certificate or Book-Entry Share Shares shall be entitled to receive in exchange therefor cash in the amount of the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect multiplied by the number of the Shares formerly represented by such Certificate or Book-Entry Share Shares, and the Certificate or Book-Entry Shares so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or Tax is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a), without any interest thereon. From and after the Effective Time, holders of Certificates and Book-Entry Shares shall cease to have any rights as stockholders of the Company, except as provided herein or by applicable Law.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(f) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, however, that any investment of such cash shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government, in commercial paper rated A-1 or P-1 or better by Mxxxx'x Investors Service, Inc. or Standard & Poor's Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker's acceptances of commercial banks (that are not subject to a cease-and-desist or other similar order or enforcement action issued by, or a party to any written agreement, consent agreement or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or subject to any capital directive by, or have adopted any board resolutions at the request of, any Governmental Entity) with capital exceeding $1 billion (based on the most recent financial statements of such bank that are then publicly available). Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Payment Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demanddemand of Parent, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III II shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate the Certificates or Book-Entry ShareShares, held by such holders without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to Section 2.1(a) of this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Acceptance Time, Parent and Merger Sub shall enter into an agreement with designate a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”) to act as agent for the holders of Shares to receive the Offer Price pursuant to Section 1.1(c). On At or prior to the day of (and immediately following) the Effective Acceptance Time, Parent shall deposit, or Merger Sub shall deposit (or cause to be deposited) , with the Paying Agent, in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders make payment of Shares the Merger Consideration to which they are entitled Offer Price payable pursuant to Section 3.1. Any cash deposited with 1.1(c), the Option Consideration, the RSU Consideration and the Warrant Consideration (such amount paid to the Paying Agent shall hereinafter be referred to as in accordance with the foregoing, the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any other purpose other than to fund payments due pursuant to Section 3.1(a), except as otherwise provided in this Agreement. Parent shall pay all fees and expenses of the Paying Agent.
(b) As soon as reasonably practicable after Prior to the Effective Acceptance Time, but in any event no later than Parent and the third (3rd) Business Day thereafter, Company shall use their commercially reasonable efforts to agree on the Surviving Corporation shall cause the Paying Agent to mail to each holder calculation of record cash amounts of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery all of the Certificates to the Paying AgentOffer Price, Option Consideration, RSU Consideration and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Warrant Consideration payable with respect thereto pursuant to Section 3.1(a). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of hereof, including as it relates to any applicable withholding amounts. Company agrees to make the relevant calculations and related back-up available to Parent, as reasonably requested by Xxxxxx and as required for compliance with (a) hereto. Notwithstanding the foregoing, nothing in this Article III (b) shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation limit any Person’s (including Parent’s or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in Agent’s) withholding rights under Section 1.7 with respect to the cash amounts deposited pursuant to this Article III, subject to applicable Law in the case of Dissenting Shares(b).
(fc) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by ParentXxxxxx, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(hd) None of Parent, the Surviving CorporationCompany (and its successor), the Paying Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) . Any portion of the Merger Consideration made available Payment Fund remaining unclaimed by holders at such time at which such amounts would otherwise escheat to or become the property of any Governmental Entity shall become, to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parentextent permitted by applicable Law, upon demandthe property of the Company (or its successor), free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent (in form and substance reasonably acceptable to the Company Company) with the Company’s transfer agent to act as paying agent in connection with the Merger (the “Paying Agent”). On At or prior to the day Effective Time (or, solely with respect to freely available cash of (the Company and immediately following) its Subsidiaries, promptly after the Effective Time), Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, to be held in trust for the benefit of the holders of the Shares, cash in an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited in accordance with the Paying Agent shall hereinafter be referred to as this Article (the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments of the Merger Consideration due pursuant to Section 3.1(a), except as provided in this Agreement. Parent shall pay all fees and expenses of the Paying AgentArticle.
(b) As soon as reasonably practicable Promptly after the Effective TimeTime (and, but in any event no event, not later than the third (3rd) second Business Day thereafterfollowing the Effective Time), the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (a “Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry SharesCertificate”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares Certificate in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)thereto. Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share Certificate, and the Certificate so surrendered shall forthwith be cancelled.
(c) The Paying Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), if any, the Merger Consideration for each such Book-Entry Share, upon receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request), and such Book-Entry Shares shall then be canceled. .
(d) No interest will be paid to or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of such Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(ce) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent and the Paying Agent that such tax either has been paid or is not applicable.
(df) Until surrendered as contemplated by this Section 3.3Section, each Certificate or and Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(eg) All Merger Consideration delivered cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged for Merger Consideration as provided in this Article IIIArticle, subject to applicable Law in the case of Dissenting Shares.
(fh) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that (i) no investment of such cash shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (ii) such investments in all events shall be in short-term obligations of the United States of America with maturities of no more than 30 days, or guaranteed by, and backed by the full faith and credit of, the United States of America. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made by the Paying Agent hereunder, Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to such deficiency. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Corporation.
(gi) Any portion At any time following the first anniversary of the Exchange Fund Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, look to Parent and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such Certificate payable upon due surrender of their Certificates or Book-Entry Share, without interestShares.
(hj) None The Surviving Corporation shall pay all charges and expenses, including those of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person Agent, in respect connection with the exchange of cash from Shares for the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawMerger Consideration.
(ik) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by reasonably acceptable to Parent and the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(jl) Any None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of any portion of the Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been exchanged prior to the date on which the related Merger Consideration made available would escheat to or become the property of any Governmental Entity, such Merger Consideration shall, to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parentextent permitted by applicable Law, upon demandbecome the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Neustar Inc)
Exchange and Payment. (a) Prior At or prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”). On the day of (and immediately following) the Effective Time, Parent or Merger Sub Northrim shall deposit (or cause to be deposited) with American Stock Transfer & Trust Company, LLC (or such other transfer agent as Northrim shall designate in good faith) (the Paying “Exchange Agent”), in trust for the benefit of holders of Shares, certificates representing the shares of Northrim Common Stock equal to the Total Stock Amount and cash in an amount of cash sufficient equal to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Total Cash Amount in accordance with Section 3.1. Any cash deposited with the Paying Agent shall 3.1 (collectively hereinafter be referred to as the “Exchange Fund.” ”). The Exchange Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)3.1, except as expressly provided in this Agreement. Parent At the Closing, Northrim shall pay all fees and expenses deliver to Alaska Pacific a certificate of the Paying AgentExchange Agent confirming receipt of the Exchange Fund.
(b) As soon as reasonably practicable after the Effective Time, but in any event no not later than the third five (3rd5) Business Day Days thereafter, the Surviving Corporation shall cause the Paying Exchange Agent to mail to each holder of record of an outstanding certificate Certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately Certificates who did not submit a properly completed Election Form or who had revoked a properly completed Election Form prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a), Election Deadline (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be in customary form and contain such other provisions as Parent Northrim or the Paying Exchange Agent may reasonably specify) ), and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)Certificates. Upon surrender of a Certificate to the Paying Exchange Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require require, or in the case of a holder who timely submitted a properly completed Election Form (a “Proper Delivery”)and had not revoked such Election Form) by the Election Deadline, the holder of such Certificate or Book-Entry Share shall be entitled to promptly receive in exchange therefor the Common Stock Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of on the Common Stock Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Common Stock Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Common Stock Merger Consideration to a such Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent Northrim that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3herein, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Common Stock Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicableCertificate, pursuant to Section 3.1(a)3.1, without any interest thereon.
(e) All The Common Stock Merger Consideration delivered paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry SharesCertificates. At the Effective Time, the stock transfer books of the Company Alaska Pacific shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective TimeCorporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Sharestransfer, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III3, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent Notwithstanding any other provision of this Agreement, no fractional shares of Northrim Common Stock will be issued and any holder of Shares entitled to receive a fractional share of Northrim Common Stock but for this Section 3.3(f) shall invest any be entitled to receive a cash included payment in lieu thereof, which payment shall be calculated by the Exchange Fund as directed by Parent, Agent and shall represent such holder’s proportionate interest in a share of Northrim Common Stock based on a daily basis. Any interest the Northrim Average Share Price.
(g) No dividends or other income resulting from such investments distributions declared or made after the Effective Time with respect to Northrim Common Stock with a record date after the Effective Time shall be paid to Parentthe holder of any unsurrendered Certificate who is to receive Northrim Common Stock pursuant to the provisions hereof until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, upon demandfollowing surrender of any such Certificate by a holder receiving Northrim Common Stock pursuant to the provisions hereof, there shall be paid to the record holder of the certificates representing whole shares of Northrim Common Stock issued in exchange therefore, without interest, (i) at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Northrim Common Stock to which such holder is entitled pursuant to Section 3.3(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Northrim Common Stock, 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 Northrim Common Stock.
(gh) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the shares of Northrim Common Stock held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect to such shares of Northrim Common Stock for the account of the Persons entitled thereto. Former shareholders of record of Alaska Pacific who are to receive shares of Northrim Common Stock pursuant to the provisions hereof shall be entitled to vote after the Effective Time at any meeting of Northrim shareholders the number of whole shares of Northrim Common Stock into which their respective Shares are converted, regardless of whether such holders have exchanged their Certificates for certificates representing Northrim Common Stock in accordance with the provisions of this Agreement.
(i) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one six (16) year months after the Effective Time shall be delivered to Parentthe Surviving Corporation, upon demanddemand of Northrim, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III 3 shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of such holder’s pro rata portion of the Common Stock Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry ShareCertificate, without interest.
(hj) None of ParentNorthrim, the Surviving Corporation, the Paying Agent Exchange Agent, or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Fund being properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(ik) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent)Northrim, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent Northrim or the Paying Exchange Agent, the posting by such Person of a bond in such amount as Parent Northrim or the Paying Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Common Stock Merger Consideration payable in with respect thereof pursuant to this Agreementshares formerly represented by such Certificate, without interest.
(jl) Any portion of the Merger Consideration Exchange Fund made available to the Paying Exchange Agent pursuant to Section 3.3(a) with respect to pay for any Dissenting Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to ParentNorthrim, upon demand.
(m) Northrim shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code or any other applicable state, local or foreign Tax law. To the extent that amounts are so withheld by Northrim, such withheld amounts (i) shall be remitted by Northrim to the applicable Governmental Entity, and (ii) shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made by Northrim.
(n) Notwithstanding anything in this Agreement to the contrary, if, between the date of this Agreement and the Effective Time, the issued and outstanding shares of Northrim Common Stock or securities convertible or exchangeable into or exercisable for shares of Northrim Common Stock, shall have been changed into a different number of shares or a different class by reason of any reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, redenomination, merger, issuer tender or exchange offer, or other similar transaction, then the Total Stock Amount and associated collar prices of Xxxxxxxx Xxxxxx Xxxxx, as applicable, shall be equitably adjusted and as so adjusted shall, from and after the date of such event, be the Total Stock Amount and associated collar prices of Northrim Common Stock, as applicable.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with (in a bank or trust company designated by Parent and form reasonably acceptable to the Company Company) with the Company’s transfer agent to act as agent for the Merger Shareholders in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which the Merger Shareholders shall become entitled pursuant to Article II. On the day of (and immediately following) Not more than two full Business Days after the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled pursuant to Section 3.1. Any cash deposited (i) with the Paying Agent shall cash in immediately available funds in an amount sufficient to make all payments to Merger Shareholders required pursuant to Article II (such cash being hereinafter be referred to as the “Exchange Payment Fund.” ”) and (ii) in an account designated by Parent not fewer than two Business Days prior to the Effective Time, cash in immediately available funds in an amount equal to the sum of the Option Payments and Warrant Payments to be used by the Surviving Corporation solely to make the payments required by Section 2.2. If Parent does not make the deposits called for by the preceding sentence within two full Business Days of the Effective Time, the parties shall immediately act to give effect to the provisions of Section 5.7(e). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a)Article II, except as provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other actions contemplated by Article II.
(b) As soon as reasonably practicable Promptly after the Effective Time, but Time and in any event no not later than the third (3rd) second Business Day thereafterfollowing the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a)(i), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a)(i). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate, and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 3.1(a2.1(a)(i) in respect of the Shares represented by such Certificate or Book-Entry Share Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and the Certificate so surrendered such Book-Entry Shares shall forthwith then be canceledcancelled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a)(i), without any interest thereon.
(e) All Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. Pacific time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration delivered (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. Pacific time on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting SharesII.
(fg) The Paying Agent shall invest any cash included in the Exchange Payment Fund as directed by Parent, on a daily basis; provided, that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash in immediately available funds into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Corporation.
(gh) Any portion of At any time following the Exchange Fund date that is 12 months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), ) as general creditors thereof, for payment of creditor thereof with respect to the Merger Consideration with respect to Shares formerly represented by such Certificate payable upon due surrender of their Certificates or Book-Entry ShareShares. The Surviving Corporation shall pay all charges and expenses, without interest.
(h) None including those of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person Agent, in respect connection with the exchange of cash from Shares for the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawMerger Consideration.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub or Parent shall enter into an agreement (in a form reasonably acceptable to the Company) with a the Company’s transfer agent or any other bank or trust company designated by Parent and reasonably acceptable to the Company to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”)) to receive the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article II. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares pay the aggregate Merger Consideration to which they are entitled pursuant to in accordance with Section 3.1. Any 2.1(a) (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”). The Exchange Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 3.1(a2.1(a), except as provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other amounts contemplated by this Article II.
(b) As soon promptly as reasonably practicable after following the Effective Time and in any event not later than the second (2nd) Business Day following the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Parent shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a2.1(a), (i) a form of letter of transmittal in form and substance reasonably acceptable to Parent and the Company (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates (or upon compliance with the replacement requirements established by the Paying Agent in lieu thereof in accordance with Section 2.3(h)), to the Paying Agent, and which letter shall be in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (ii) instructions for use in completing such letter of transmittal and effecting the surrender of such Certificates (or Book-Entry Shares complying with the replacement requirements established by the Paying Agent in lieu thereof in accordance with Section 2.3(h)) in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a2.1(a). Upon surrender of a Certificate to the Paying AgentAgent (or upon compliance with the replacement requirements established by the Paying Agent in lieu thereof in accordance with Section 2.3(h)), together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”), the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share Certificate, and the Certificate so surrendered shall forthwith be canceled. As promptly as practicable following the Effective Time and in any event not later than the second (2nd) Business Day following the Effective Time, Parent shall cause the Paying Agent to issue and deliver to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) a check or wire transfer for the amount of cash to which such holder is entitled pursuant to Section 2.1(a) in respect of such Book-Entry Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and such Book-Entry Shares shall then be canceled. No interest will shall be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on any the Merger Consideration payable in respect of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry Share.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share shall be properly transferred transferred, in each case, to the reasonable satisfaction of Parent and Paying Agent and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent and Paying Agent that such tax Tax either has been paid or is not applicable.
(dc) Until surrendered or canceled as contemplated by this Section 3.32.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a2.1(a), without any interest thereon.
(d) Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. (prevailing Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds sufficient to pay the Merger Consideration with respect to all Shares held of record by DTC or such nominees immediately prior to the Effective Time (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. (prevailing Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first (1st) Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(e) All Merger Consideration delivered cash paid upon the surrender for exchange or cancelation of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Certificates or Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Surviving Corporation shall cause the Paying Agent shall to invest any cash included in the Exchange Payment Fund as directed by ParentXxxxxx, on a daily basis; provided, that any investment of such cash shall in all events be in (x) short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America, (y) commercial paper obligations rated A-1 or P-1 (or better) by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or (z) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1,000,000,000. If for any reason (including investment losses or Shares ceasing to qualify as Dissenting Shares) the cash in the Payment Fund is insufficient to fully satisfy all of the payments of Merger Consideration to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such Merger Consideration payment obligations. Any interest or and other income resulting from such investments shall be paid payable to Parent, upon demandthe Surviving Corporation.
(g) Any portion of At any time following the Exchange Fund date that is 12 months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (and including any interest or other income earned thereonreceived with respect thereto) that remains undistributed have been made available to the Paying Agent and that have not been disbursed to holders of Certificates or Book-Entry Shares one (1) year after the Effective Time Shares, and thereafter such holders shall be delivered entitled to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration with respect to Shares formerly represented by such payable upon due surrender of their Certificate or Book-Entry ShareShares. The Surviving Corporation shall pay all charges and expenses, without interestincluding those of the Paying Agent, in connection with the exchange of Shares for the Merger Consideration.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by holder’s compliance with the Paying Agent (or, if no such affidavit is required replacement requirements established by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed andincluding, if required by Parent or the Paying Agentnecessary, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Surviving Corporation shall cause the Paying Agent will deliver to deliver, in exchange for such lost, stolen or destroyed Certificate Certificate, the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.
Appears in 1 contract
Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub I shall enter into an agreement (in a form reasonably acceptable to the Company) with a such bank or trust company designated by Parent and reasonably acceptable to the Company to act as exchange agent for the stockholders of the Company in connection with the Mergers (the “Paying Exchange Agent”). On the day of () and immediately following) the Effective TimeParent shall deposit, Parent or Merger Sub shall deposit (or cause to be deposited) , with the Paying Exchange Agent, in trust for the benefit of the holders of Shares, (i) an aggregate number of shares of Parent Common Stock to be issued in book-entry form and (ii) an aggregate amount of cash sufficient cash, in each case, comprising approximately the amounts required to deliver to holders of Shares the Merger Consideration to which they are entitled be delivered pursuant to Section 3.12.1(a) in respect of Shares. Any In addition, Parent shall deposit, or cause to be deposited, with the Exchange Agent, as necessary from time to time after the Effective Time cash in lieu of any fractional shares payable pursuant to Section 2.6(k). All shares of Parent Common Stock and cash deposited with the Paying Exchange Agent pursuant to this Section 2.6(a) shall hereinafter be referred to as the “Exchange Fund.” The Exchange Fund shall not be used for any purpose other than to fund payments due the aggregate Merger Consideration payable pursuant to Section 3.1(a2.1(a), except as provided in this Agreement. Parent or the Surviving Company shall pay all fees charges and expenses expenses, including those of the Paying Exchange Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration.
(b) As soon as reasonably practicable Promptly after the Effective Time and in any event not later than the fifth (5th) Business Day following the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Surviving Corporation Company shall cause the Paying Exchange Agent to mail to (i) in the case of each holder of record as of an outstanding the Effective Time of a certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant Consideration, to Section 3.1(a), mail (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent, and which letter shall be ) in customary form and contain such other provisions as Parent or the Paying Agent may reasonably specify) and (iiB) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration payable and (ii) in the case of each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), to mail customary provisions regarding delivery of an “agent’s message” with respect thereto pursuant to Section 3.1(a)such Book-Entry Shares. Upon surrender of a Certificate or Book-Entry Shares to the Paying Exchange Agent, together with such letter of transmittal (orwith, in the case of a Book-Entry Sharecertificated Shares, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions thereto, and such other documents as the Paying Exchange Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share Shares shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of for the Shares formerly represented by such Certificate or Book-Entry Shares (other than Excluded Shares and Dissenting Shares) the Merger Consideration for each such Share and any cash in lieu of fractional shares pursuant to Section 2.6(k), and the Certificate and Book-Entry Shares so surrendered shall forthwith be canceledcancelled. No interest will be paid or accrued on any Merger Consideration payable in respect for the benefit of holders of Certificates or Book-Entry Shares. Payment of Shares on the Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable Certificate or Book-Entry ShareConsideration.
(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry Share and shall be properly transferred transferred, and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax Tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.32.6, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicablethereof, pursuant to Section 3.1(a)this Article II, without any interest thereon.
(e) All Merger Consideration delivered paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation Company or the Paying Exchange Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged as provided in this Article IIIII, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Exchange Agent shall invest any cash included in the Exchange Fund as directed by ParentXxxxxx, on a daily basis. If for any reason (including investment losses) the cash in the Exchange Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder (but subject to Section 2.7), Parent shall promptly deposit cash into the Exchange Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest or and other income resulting from such investments shall be paid to the property of, and shall be payable to, Parent, upon demand.
(g) Any portion of At any time following the Exchange Fund date that is twelve (and any interest or other income earned thereon12) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year months after the Effective Time Time, Parent shall be delivered entitled to Parent, upon demandrequire the Exchange Agent to deliver to it or its designee any funds (including any interest received with respect thereto) which have been made available to the Exchange Agent and which have not been disbursed to holders of Certificates, and any thereafter such holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter be entitled to look only to Parent and the Surviving Corporation Company (subject to abandoned property, escheat or other similar Laws), laws) only as general creditors thereof, for payment of thereof with respect to the Merger Consideration payable upon due surrender of their Certificate. Parent shall, or shall cause the Surviving Company to, pay all charges and expenses, including those of the Exchange Agent, in connection with respect to the exchange of Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) for the Merger Consideration. None of Parent, the Surviving CorporationCompany, the Paying Exchange Agent or any other Person shall be liable to any Person in respect of cash from any portion of the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by the Company’s stockholders at such date as is immediately prior to the time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall, to the extent permitted by applicable Laws, become the property of the Surviving Company, free and clear of any claims or interests of any such stockholders or their successors, assigns or personal representatives previously entitled thereto.
(ih) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavitholder’s compliance with the replacement requirements established by the Exchange Agent, in form and substance including, if reasonably required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying AgentSurviving Company, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation Company with respect to such Certificate, the Paying Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(i) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company will be required to provide a Certificate or an executed letter of transmittal to the Exchange Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 2.1(a).
(j) Any portion The stock transfer books of the Company shall be closed immediately upon the Effective Time, and there shall be no further registration of transfers of Shares thereafter on the records of the Company. At or after the Effective Time, the Certificates or Book-Entry Shares shall, subject to compliance with the provisions of this Article II by the holder thereof and subject to Section 2.7, represent only the right to receive the Merger Consideration made available with respect to the Paying Agent pursuant Shares formerly represented thereby.
(k) Notwithstanding any other provision of this Agreement, no fractional shares of Parent Common Stock will be issued and any holder of Shares entitled to receive a fractional share of Parent Common Stock but for this Section 3.3(a2.6(k) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned entitled to Parentreceive a cash payment in lieu thereof, upon demandwhich payment shall be calculated by the Exchange Agent and shall represent such holder’s proportionate interest in a share of Parent Common Stock based on the Parent Share Value.
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Exchange and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company designated paying agent selected by Parent and reasonably acceptable with the Company’s prior approval (such approval not to be unreasonably withheld or delayed) for the stockholders of the Company in connection with the Merger (the “Paying Agent”)) to distribute the Merger Consideration to which stockholders of the Company shall become entitled pursuant to this Article II. On the day of (and immediately following) At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Agent cash in trust for the benefit of holders of Shares, an amount of cash sufficient to deliver to holders of Shares the Merger Consideration to which they are entitled make all payments pursuant to Section 3.1. Any this Article II (such cash deposited with the Paying Agent shall being hereinafter be referred to as the “Exchange Payment Fund.” ”), less any Merger Consideration paid directly to any record holder of Shares pursuant to any agreement between such holder, Parent and the Company providing for such payment and the surrender of such holder’s Shares. The Exchange Payment Fund shall not be used for any purpose other than to fund payments of the Merger Consideration due pursuant to Section 3.1(a)this Article II, except as expressly provided in this Agreement. Parent The Surviving Corporation shall pay all fees charges and expenses expenses, including those of the Paying Agent, incurred by it in connection with this Agreement.
(b) As soon promptly as reasonably practicable after following the Effective Time, but Time and in any event no not later than the third (3rd) second Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of (i) an outstanding certificate or outstanding certificates (“Certificates”) and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”) that immediately prior to the Effective Time represented outstanding Shares that or (ii) uncertificated Shares represented by book-entry (“Book-Entry Shares”) which, in each case, were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1(a)2.1, (iA) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person shall pass, only upon proper delivery of the Certificates to the Paying AgentAgent or, and in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) which letter shall be in customary form prepared by Parent prior to the Effective Time with the consent and contain such other provisions as Parent or approval (not to be unreasonably withheld) of the Paying Agent may reasonably specify) Company and (iiB) instructions for use in effecting the surrender of such Certificates or and Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 3.1(a)this Article II. Upon surrender of a Certificate or Book Entry Share to the Paying Agent, together with such letter of transmittal (or, in the case of a Book-Entry Share, upon delivery of such letter of transmittal), duly completed and validly executed in accordance with the instructions theretoexecuted, and such other documents as the Paying Agent may reasonably require (a “Proper Delivery”)require, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(a) in respect of the Shares for each Share formerly represented by such Certificate or Book-Entry Share and the Certificate so surrendered shall forthwith be canceledShare. No interest will shall be paid or accrued shall accrue on any Merger Consideration cash payable in respect upon surrender of Certificates or Book-Entry Shares. Payment of Merger Consideration shall be made as promptly as practicable after the date of Proper Delivery of the applicable any Certificate or Book-Entry Share.
(c) If payment of . In the event that the Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered any Certificate or Book-Entry Share is registered, it shall be a condition of payment that such the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer transfer, that the signatures on such Certificate or such Book-Entry Share any related stock power shall be properly transferred guaranteed and that the Person requesting such payment shall have paid pay any transfer and or other Taxes required by reason of the such payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such tax either has been paid or is not applicable.
(d) Until surrendered as contemplated by this Section 3.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 3.1(a), without any interest thereon.
(e) All Merger Consideration delivered upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article III, subject to applicable Law in the case of Dissenting Shares.
(f) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent, on a daily basis. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.
(g) Any portion of the Exchange Fund (and any interest or other income earned thereon) that remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates or Book-Entry Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for payment of the Merger Consideration with respect to Shares formerly represented by such Certificate or Book-Entry Share, without interest.
(h) None of Parent, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any Person in respect of cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance required by the Paying Agent (or, if no such affidavit is required by the Paying Agent, in form and substance reasonably acceptable to Parent), of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such amount as Parent or the Paying Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.
(j) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.3(a) to pay for Shares for which appraisal rights have been perfected as described in Section 3.5 shall be returned to Parent, upon demand.registered
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