Exchange Fund; Exchange of Certificates. (a) Prior to the Closing Date, Obalon and ReShape shall mutually select a bank or trust company, which may be the transfer agent for the Obalon Shares, to act as exchange agent in the Merger (the “Exchange Agent”), and, not later than the Effective Time, Obalon shall enter into an agreement with such bank or trust company which agreement shall be reasonably acceptable to ReShape and shall provide that, at the Effective Time, Obalon shall deposit, for the benefit of the holders of the shares of ReShape Common Stock or ReShape Series B Preferred Stock, Obalon Shares representing the Merger Consideration with the Exchange Agent. The Obalon Shares so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the “Exchange Fund”. (b) Without any action on the part of any holder, Obalon shall cause the Exchange Agent to (i) issue, as of the Effective Time, to each holder of Book-Entry Shares that number of uncertificated whole Obalon Shares that the holder is entitled to receive pursuant to this Article 2 and cancel such Book-Entry Shares and (ii) mail to each holder of Book-Entry Shares a check in the amount of any cash payable in respect of such holder Book-Entry Shares pursuant to Section 2.07(b). (c) As soon as practicable after the Effective Time, and in any event within two Business Days, Obalon shall cause the Exchange Agent to mail to the record holders of ReShape Stock Certificates: (i) a letter of transmittal in customary form and containing such provisions as Obalon and ReShape may reasonably specify (including a provision confirming that delivery of ReShape Stock Certificates shall be effected, and risk of loss and title to the shares of ReShape Common Stock or ReShape Series B Preferred Stock shall pass, only upon delivery of such ReShape Stock Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the ReShape Stock Certificates in exchange for the Obalon Shares, as provided in Section 2.07(a). Upon surrender of a ReShape Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Obalon, (A) the holder of such ReShape Stock Certificate shall be entitled to receive in exchange a certificate or evidence of shares in book entry form representing the number of whole Obalon Shares that such holder has the right to receive pursuant to the provisions of Section 2.07(a) (and cash in lieu of any fractional Obalon Shares) and (B) the ReShape Stock Certificate so surrendered shall immediately be canceled. Until surrendered as contemplated by this Section 2.09(c), each ReShape Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Obalon Shares (and cash in lieu of any fractional Obalon Shares) as contemplated by this Article 2 and any distribution or dividend with respect to Obalon Shares, the record date for which is after the Effective Time. In the event of a transfer of ownership of shares of ReShape Common Stock or ReShape Series B Preferred Stock that is not registered in the transfer records of ReShape, a certificate or evidence of shares in book-entry form representing the proper number of Obalon Shares may be issued to a Person other than the Person in whose name the ReShape Stock Certificate so surrendered is registered if such ReShape Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such issuances shall pay any transfer or other Taxes required by reason of the issuance of the Obalon Shares to a Person other than the registered holder of such shares of ReShape Common Stock or ReShape Series B Preferred Stock or establish to the satisfaction of Obalon that such Taxes have been paid or are not applicable. If any ReShape Stock Certificate shall have been lost, stolen or destroyed, Obalon may, in its discretion and as a condition precedent to the issuance of any certificate or evidence of shares in book-entry form representing Obalon Shares, require the owner of such lost, stolen or destroyed ReShape Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Obalon may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Obalon, or the Surviving Corporation with respect to such ReShape Stock Certificate. (d) No dividends or other distributions declared or made with respect to the Obalon Shares with a record date after the Effective Time shall be paid to the holder of unsurrendered ReShape Stock Certificate with respect to the Obalon Shares that such holder has the right to receive pursuant to the Merger until such holder surrenders such ReShape Stock Certificate in accordance with this Section 2.09. All such dividends and other distributions shall be paid by Obalon to the Exchange Agent and shall be included in the Exchange Fund, in each case until the surrender of such ReShape Stock Certificate in accordance with this Section 2.09. Following surrender of any such ReShape Stock Certificate there shall be paid to the recordholder thereof, 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 with a payment date subsequent to such surrender payable with respect to such Obalon Shares. (e) Any portion of the Exchange Fund that remains undistributed to holders of ReShape Stock Certificates as of the date one (1) year after the Closing Date shall be delivered to Obalon upon demand and any holders of ReShape Stock Certificates who have not therefore surrendered their ReShape Stock Certificates to the Exchange Agent in accordance with this Section 2.09(e) any holders of Book-Entry Shares who have not theretofore cashed any check payable to them in accordance with Section 2.07(b), shall thereafter look only to Obalon for satisfaction of their claims for Obalon Shares, cash in lieu of fractional Obalon Shares and any dividends or distributions with respect to Obalon Shares, subject to applicable abandonee property law, escheat law or similar Law. (f) Neither Obalon nor the Surviving Corporation shall be liable to any current or former holder of ReShape Common Stock or ReShape Series B Preferred Stock or to any other Person with respect to any Obalon Shares (or dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property law, escheat law or similar Law. If any ReShape Stock Certificate shall not have been surrendered prior to five (5) years after the Closing Date (or immediately prior to such earlier date on which any Obalon Shares or any dividends or other distributions payable to the holder of such ReShape Stock Certificate would otherwise escheat to or become the property of any Governmental Body), any Obalon Shares issuable upon the surrender of, or any dividends or other distributions in respect of, such ReShape Stock Certificate shall, to the extent permitted by applicable Law, become the property of Obalon, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Obalon Therapeutics Inc), Merger Agreement (ReShape Lifesciences Inc.)
Exchange Fund; Exchange of Certificates. (a) Prior to the Closing Date, Obalon Parent and ReShape the Company shall mutually select a bank or trust company, which may be the transfer agent for the Obalon SharesMerger Consideration, to act as exchange agent in the Initial Merger (the “Exchange Agent”), and, not later than the Initial Merger Effective Time, Obalon Parent shall enter into an agreement with such bank or trust company which agreement shall be the Exchange Agent reasonably acceptable to ReShape and the Company, which shall provide that, at or prior to the Initial Merger Effective Time, Obalon Parent shall deposit, for the benefit of the holders of the shares of ReShape Common Stock or ReShape Series B Preferred Stock, Obalon Shares representing the Merger Consideration deposit with the Exchange AgentAgent (i) the number of shares of Parent Class A Common Stock issuable to former holders of shares of Company Common Stock (other than the Excluded Shares) issued and outstanding immediately prior to the Initial Merger Effective Time and (ii) sufficient cash to make delivery of the Mixed Election Cash Consideration and Cash Election Consideration, as applicable, to such holders, in each case pursuant to Section 1.6(a)(iii) and Section 1.8(f). The Obalon Shares cash and shares of Parent Class A Common Stock so deposited with the Exchange Agent, together with (A) any dividends or distributions received by the Exchange Agent with respect to such sharesshares and (B) proceeds received from the sale of the Parent Excess Shares pursuant to Section 1.8(f), are referred to collectively as the “Exchange Fund”.” Any interest or other income resulting from investment of the cash portion of the Exchange Fund shall become part of the Exchange Fund, and any amounts in excess of the amounts payable hereunder shall, at the discretion of Parent, be promptly returned to Parent or the Subsequent Surviving Company.
(b) Without any action on the part of any holder, Obalon shall cause the Exchange Agent to (i) issue, as of the Effective Time, to each holder of Book-Entry Shares that number of uncertificated whole Obalon Shares that the holder is entitled to receive pursuant to this Article 2 and cancel such Book-Entry Shares and (ii) mail to each holder of Book-Entry Shares a check in the amount of any cash payable in respect of such holder Book-Entry Shares pursuant to Section 2.07(b).
(c) As soon as practicable after the Initial Merger Effective Time, and but in any no event within more than two (2) Business DaysDays after the Closing Date, Obalon Parent shall cause the Exchange Agent to mail to the record holders of ReShape Company Stock Certificates: Certificates (i) a letter of transmittal in customary form and containing such provisions as Obalon Parent and ReShape the Company may reasonably specify (including a provision confirming that delivery of ReShape Company Stock Certificates shall be effected, and risk of loss and title to the shares of ReShape Common Company Stock or ReShape Series B Preferred Stock Certificates shall pass, only upon delivery of such ReShape Company Stock Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the ReShape Company Stock Certificates in exchange for the Obalon SharesMerger Consideration, as provided in Section 2.07(a1.6(a)(iii), and any cash in lieu of a fractional share which the shares of Company Common Stock represented by such Company Stock Certificates shall have been converted into the right to receive pursuant to this Agreement, as well as any dividends to be paid pursuant to Section 1.8(c). Upon surrender of a ReShape Company Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or ObalonParent, (A) the holder of such ReShape Company Stock Certificate shall be entitled to receive in exchange a certificate or evidence of shares in book entry form representing the number of whole Obalon Shares that such holder has the right to receive Merger Consideration pursuant to the provisions of Section 2.07(a) 1.6 (and cash in lieu of any fractional Obalon Sharesshare of Parent Class A Common Stock) as well as any dividends to be paid pursuant to Section 1.8(c), and (B) the ReShape Company Stock Certificate so surrendered shall be immediately canceled.
(c) No dividends declared with respect to the Parent Class A Common Stock shall be canceled. paid to the holder of any unsurrendered Company Stock Certificate until the holder thereof shall surrender such Company Stock Certificate in accordance with this Article I. After the surrender of a Company Stock Certificate in accordance with this Article I, the record holder thereof shall be entitled to receive any such dividends, without any interest thereon, which theretofore had become payable with respect to the whole shares of Parent Class A Common Stock which the shares of Company Common Stock represented by such Company Stock Certificate have been converted into the right to receive.
(d) Until surrendered as contemplated by this Section 2.09(c)1.8, each ReShape Company Stock Certificate shall be deemed, from and after the Initial Merger Effective Time, to represent only the right to receive Obalon Shares the Merger Consideration (and cash in lieu of any fractional Obalon Sharesshare of Parent Class A Common Stock) as contemplated by this Article 2 I and any distribution or dividend with respect to Obalon Shares, Parent Class A Common Stock the record date for which is after the Initial Merger Effective Time. .
(e) In the event of a transfer of ownership of shares of ReShape Company Common Stock or ReShape Series B Preferred Stock that is not registered in the transfer records of ReShapethe Company, a certificate or evidence of shares in book-entry form representing the proper number of Obalon Shares shares of Parent Class A Common Stock may be issued to a Person other than the Person in whose name the ReShape such Company Stock Certificate so surrendered is registered if such ReShape Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such issuances issuance shall pay any transfer or other Taxes required by reason of the issuance of the Obalon Shares Parent Class A Common Stock to a Person other than the registered holder of such shares of ReShape Common Company Stock or ReShape Series B Preferred Stock Certificate or establish to the satisfaction of Obalon Parent that such Taxes have been paid or are not applicable. If any ReShape Company Stock Certificate shall have been lost, stolen or destroyed, Obalon Parent may, in its discretion and as a condition precedent to the issuance of any certificate or evidence of shares in book-entry form representing Obalon Shares, Parent Class A Common Stock require the owner of such lost, stolen or destroyed ReShape Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Obalon Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Obalon, Parent or the Subsequent Surviving Corporation Company with respect to such ReShape Company Stock Certificate.
(di) No dividends As promptly as practicable following the Initial Merger Effective Time, the Exchange Agent shall (1) determine the Merger Consideration that each holder of Company Common Stock is entitled to receive in connection with the consummation of the Initial Merger pursuant to the provisions in Section 1.6 and (2) as applicable, aggregate all such fractional shares of Parent Class A Common Stock that would, except as provided in Section 1.6(d), be issued to the holders of Company Common Stock, rounding up to the nearest whole number (the “Parent Excess Shares”). As promptly as practicable following the Initial Merger Effective Time, the Exchange Agent shall, on behalf of former Company Stockholders, sell the Parent Excess Shares at then-prevailing prices on the New York Stock Exchange (the “NYSE”), all in the manner provided in Section 1.8(f)(ii).
(ii) The sale of the Parent Excess Shares 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. The Exchange Agent shall use reasonable efforts to complete the sale of the Parent Excess Shares as promptly following the Initial Merger Effective Time as, in the Exchange Agent’s sole judgment, is practicable consistent with obtaining the best execution of such sales in light of prevailing market conditions. Until the net proceeds of such sale or sales have been distributed to the former holders of Company Common Stock, the Exchange Agent shall hold such proceeds in trust for such holders (the “Company Common Stock Trust”). Parent shall pay all commissions and other distributions declared out-of-pocket transaction costs (other than any transfer or made similar Taxes imposed on a holder of Company Common Stock), including the expenses and compensation of the Exchange Agent incurred in connection with such sale of the Parent Excess Shares. The Exchange Agent shall determine the portion of the Company Common Stock Trust to which each former holder of Company Common Stock is entitled, if any, by multiplying the amount of the aggregate net proceeds composing the Company Common Stock Trust by a fraction, the numerator of which is the amount of the fractional share interest to which such former holder of Company Common Stock is entitled (after taking into account all shares of Company Common Stock held as of immediately prior to the Initial Merger Effective Time by such holder to be converted into Parent Class A Common Stock pursuant to Section 1.6(a)(iii)) and the denominator of which is the aggregate amount of fractional share interests to which all former holders of Company Common Stock are entitled.
(iii) As soon as practicable after the determination of the amount of cash, if any, to be paid to former holders of Company Common Stock with respect to any fractional share interests, the Obalon Shares with a record date after the Effective Time Exchange Agent shall be paid make available such amounts to the holder of unsurrendered ReShape Stock Certificate with respect such holders, subject to the Obalon Shares that such holder has the right to receive pursuant to the Merger until such holder surrenders such ReShape Stock Certificate and in accordance with the terms of this Section 2.09. All such dividends and other distributions shall be paid by Obalon to the Exchange Agent and shall be included in the Exchange Fund, in each case until the surrender of such ReShape Stock Certificate in accordance with this Section 2.09. Following surrender of any such ReShape Stock Certificate there shall be paid to the recordholder thereof, 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 with a payment date subsequent to such surrender payable with respect to such Obalon Shares1.8.
(eg) Any portion of the Exchange Fund that remains undistributed to holders stockholders of ReShape Stock Certificates the Company as of the date one six (16) year months after the Closing Date Initial Merger Effective Time shall be delivered to Obalon Parent upon demand demand, and any holders of ReShape Company Stock Certificates who have not therefore theretofore surrendered their ReShape Company Stock Certificates to the Exchange Agent in accordance with this Section 2.09(e) 1.8 and any holders of Book-Entry Common Shares who have not theretofore cashed any check payable to them in accordance with Section 2.07(b), 1.9 shall thereafter look only to Obalon Parent for satisfaction of their claims for Obalon Sharesthe Merger Consideration, cash in lieu of fractional Obalon Shares shares of Parent Class A Common Stock and any dividends or distributions with respect to Obalon Shares, Parent Class A Common Stock subject to applicable abandonee abandoned property law, escheat law laws or similar LawLaws.
(fh) Neither Obalon Parent nor the Subsequent Surviving Corporation shall Company shall, to the extent permitted by applicable Law, be liable to any current holder or former holder of ReShape Company Common Stock or ReShape Series B Preferred Stock or to any other Person with respect to any Obalon Shares share of Company Common Stock (or any dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property law, escheat law or similar Law. If any ReShape Company Stock Certificate shall not have been surrendered prior to five (5) years after the Closing Date Initial Merger Effective Time (or immediately prior to such earlier date on which any Obalon Shares such shares of Parent Class A Common Stock or any dividends or other distributions payable to the holder of such ReShape Stock Certificate thereof would otherwise escheat to or become the property of any Governmental BodyEntity), any Obalon Shares shares of Parent Class A Common Stock issuable upon the surrender of, or any dividends or other distributions in respect of, such ReShape Company Stock Certificate shall, to the extent permitted by applicable Law, become the property of ObalonParent, free and clear of all claims or interest of any Person previously entitled thereto.
(i) No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares, or any unpaid dividends payable to holders of Company Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (Silverbow Resources, Inc.), Merger Agreement (Crescent Energy Co)
Exchange Fund; Exchange of Certificates. (a) Prior to the Closing Date, Obalon Central and ReShape East shall mutually select a bank or trust company, which may be the transfer agent for the Obalon SharesCentral Common Stock, to act as exchange agent in the Merger (the “Exchange Agent”), and, not later than the Effective Time, Obalon Central shall enter into an agreement with such bank or trust company the Exchange Agent, which agreement shall be reasonably acceptable to ReShape and shall will provide that, at or prior to the Effective Time, Obalon Central shall deposit, for deposit with the benefit of the holders Exchange Agent all of the shares of ReShape Central Common Stock or ReShape Series B Preferred Stock, Obalon Shares representing to pay the aggregate Merger Consideration with the Exchange Agentpursuant to Section 1.6(a)(ii) and Section 1.8(f). The Obalon Shares shares of Central Common Stock so deposited with the Exchange Agent, together with (i) any dividends or distributions received by the Exchange Agent with respect to such sharesshares and (ii) proceeds received from the sale of the Central Excess Shares pursuant to Section 1.8(f), are referred to collectively as the “Exchange Fund.”.
(b) Without any action on the part of any holder, Obalon shall cause the Exchange Agent to (i) issue, as of the Effective Time, to each holder of Book-Entry Shares that number of uncertificated whole Obalon Shares that the holder is entitled to receive pursuant to this Article 2 and cancel such Book-Entry Shares and (ii) mail to each holder of Book-Entry Shares a check in the amount of any cash payable in respect of such holder Book-Entry Shares pursuant to Section 2.07(b).
(c) As soon as practicable after the Effective Time, and but in any no event within more than two (2) Business DaysDays after the Closing Date, Obalon Central shall cause the Exchange Agent to mail to the record holders of ReShape East Stock Certificates: Certificates (i) a letter of transmittal in customary form and containing such provisions as Obalon Central and ReShape East may reasonably specify (including a provision confirming that delivery of ReShape East Stock Certificates shall be effected, and risk of loss and title to the shares of ReShape Common East Stock or ReShape Series B Preferred Stock Certificates shall pass, only upon delivery of such ReShape East Stock Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the ReShape East Stock Certificates in exchange for the Obalon SharesCentral Common Stock, as provided in Section 2.07(a1.6, and any cash in lieu of a fractional share which the shares of East Common Stock represented by such East Stock Certificates shall have been converted into the right to receive pursuant to this Agreement, as well as any dividends or distributions to be paid pursuant to Section 1.8(c). Upon surrender of a ReShape an East Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or ObalonCentral, (A) the holder of such ReShape East Stock Certificate shall be entitled to receive in exchange a certificate or evidence of shares in book book-entry form representing the number of whole Obalon Shares shares of Central Common Stock that such holder has the right to receive pursuant to the provisions of Section 2.07(a) 1.6 (and cash in lieu of any fractional Obalon Sharesshare of Central Common Stock) as well as any dividends or distributions to be paid pursuant to Section 1.8(c), and (B) the ReShape East Stock Certificate so surrendered shall be immediately canceled.
(c) No dividends or other distributions declared with respect to the Central Common Stock shall be canceled. paid to the holder of any unsurrendered East Stock Certificate until the holder thereof shall surrender such East Stock Certificate in accordance with this Article I. After the surrender of an East Stock Certificate in accordance with this Article I, the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the whole shares of Central Common Stock which the shares of East Common Stock represented by such East Stock Certificate have been converted into the right to receive.
(d) Until surrendered as contemplated by this Section 2.09(c)1.8, each ReShape East Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Obalon Shares shares of Central Common Stock (and cash in lieu of any fractional Obalon Sharesshare of Central Common Stock) as contemplated by this Article 2 I and any distribution or dividend with respect to Obalon Shares, Central Common Stock the record date for which is after the Effective Time. .
(e) In the event of a transfer of ownership of shares of ReShape East Common Stock or ReShape Series B Preferred Stock that is not registered in the transfer records of ReShapeEast, a certificate or evidence of shares in book-entry form representing the proper number of Obalon Shares shares of Central Common Stock may be issued to a Person other than the Person in whose name the ReShape such East Stock Certificate so surrendered is registered if such ReShape East Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such issuances issuance shall pay any transfer or other Taxes required by reason of the issuance of the Obalon Shares Central Common Stock to a Person other than the registered holder of such shares of ReShape Common East Stock or ReShape Series B Preferred Stock Certificate or establish to the satisfaction of Obalon Central that such Taxes have been paid or are not applicable. If any ReShape East Stock Certificate shall have been lost, stolen or destroyed, Obalon Central may, in its discretion and as a condition precedent to the issuance of any certificate or evidence of shares in book-entry form representing Obalon Shares, Central Common Stock require the owner of such lost, stolen or destroyed ReShape East Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Obalon Central may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Obalon, Central or the Surviving Corporation with respect to such ReShape East Stock Certificate.
(di) No dividends As promptly as practicable following the Effective Time, the Exchange Agent shall (A) determine the number of whole shares of Central Common Stock and the number of fractional shares of Central Common Stock that each holder of East Common Stock is entitled to receive in connection with the consummation of the Merger and (B) aggregate all such fractional shares of Central Common Stock that would, except as provided in Section 1.6(c), be issued to the holders of East Common Stock, rounding up to the nearest whole number (the “Central Excess Shares”), and the Exchange Agent shall, on behalf of former stockholders of East, sell the Central Excess Shares at then-prevailing prices on the New York Stock Exchange (the “NYSE”), all in the manner provided in Section 1.8(f)(ii).
(ii) The sale of the Central Excess Shares 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. The Exchange Agent shall use reasonable efforts to complete the sale of the Central Excess Shares as promptly following the Effective Time as, in the Exchange Agent’s sole judgment, is practicable consistent with obtaining the best execution of such sales in light of prevailing market conditions. Until the net proceeds of such sale or sales have been distributed to the former holders of East Common Stock, the Exchange Agent shall hold such proceeds in trust for such holders (the “East Common Stock Trust”). Central shall pay all commissions and other distributions declared out-of-pocket transaction costs (other than any transfer or made similar Taxes imposed on a holder of East Common Stock), including the expenses and compensation of the Exchange Agent incurred in connection with such sale of the Central Excess Shares. The Exchange Agent shall determine the portion of the East Common Stock Trust to which each former holder of East Common Stock is entitled, if any, by multiplying the amount of the aggregate net proceeds composing the East Common Stock Trust by a fraction, the numerator of which is the amount of the fractional share interest to which such former holder of East Common Stock is entitled (after taking into account all shares of East Common Stock held at the Effective Time by such holder) and the denominator of which is the aggregate amount of fractional share interests to which all former holders of East Common Stock are entitled.
(iii) As soon as practicable after the determination of the amount of cash, if any, to be paid to former holders of East Common Stock with respect to any fractional share interests, the Obalon Shares with a record date after the Effective Time Exchange Agent shall be paid make available such amounts to the holder of unsurrendered ReShape Stock Certificate with respect such holders, subject to the Obalon Shares that such holder has the right to receive pursuant to the Merger until such holder surrenders such ReShape Stock Certificate and in accordance with the terms of this Section 2.09. All such dividends and other distributions shall be paid by Obalon to the Exchange Agent and shall be included in the Exchange Fund, in each case until the surrender of such ReShape Stock Certificate in accordance with this Section 2.09. Following surrender of any such ReShape Stock Certificate there shall be paid to the recordholder thereof, 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 with a payment date subsequent to such surrender payable with respect to such Obalon Shares1.8.
(eg) Any portion of the Exchange Fund that remains undistributed to holders stockholders of ReShape Stock Certificates East as of the date one six (16) year months after the Closing Date Effective Time shall be delivered to Obalon Central upon demand demand, and any holders of ReShape East Stock Certificates who have not therefore theretofore surrendered their ReShape East Stock Certificates to the Exchange Agent in accordance with this Section 2.09(e) 1.8 and any holders of Book-Entry Common Shares who have not theretofore cashed any check payable to them in accordance with Section 2.07(b), 1.9 shall thereafter look only to Obalon Central for satisfaction of their claims for Obalon SharesCentral Common Stock, cash in lieu of fractional Obalon Shares shares of Central Common Stock and any dividends or distributions with respect to Obalon Shares, Central Common Stock subject to applicable abandonee abandoned property law, escheat law laws or similar LawLaws.
(fh) Each of the Exchange Agent, Central and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement such amounts as are required to be deducted or withheld therefrom under the Code, or any provision of state, local or foreign Tax Law or under any other applicable Law; provided that the parties hereto agree that the consideration payable or deliverable pursuant to this Agreement shall not be subject to withholding under Section 1445 of the Code or the Treasury regulations promulgated thereunder. To the extent that amounts are so deducted or withheld, and timely remitted to the appropriate Governmental Entity, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.
(i) Neither Obalon Central nor the Surviving Corporation shall be liable to any current holder or former holder of ReShape East Common Stock or ReShape Series B Preferred Stock or to any other Person with respect to any Obalon Shares share of East Common Stock (or any dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property law, escheat law or similar Law. If any ReShape East Stock Certificate shall not have been surrendered prior to five (5) years after the Closing Date Effective Time (or immediately prior to such earlier date on which any Obalon Shares such shares of Central Common Stock or any dividends or other distributions payable to the holder of such ReShape Stock Certificate thereof would otherwise escheat to or become the property of any Governmental BodyEntity), any Obalon Shares shares of Central Common Stock issuable upon the surrender of, or any dividends or other distributions in respect of, such ReShape East Stock Certificate shall, to the extent permitted by applicable Law, become the property of ObalonCentral, free and clear of all claims or interest of any Person previously entitled thereto.
(j) No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares, or any unpaid dividends or distributions payable to holders of East Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (WPX Energy, Inc.), Merger Agreement (Devon Energy Corp/De)
Exchange Fund; Exchange of Certificates. (a) Prior to the Closing Date, Obalon Visor and ReShape Union shall mutually select a bank or trust company, which may be the transfer agent for the Obalon Visor Shares, to act as exchange agent in the Merger (the “Exchange Agent”), and, not later than the Effective Time, Obalon Visor shall enter into an agreement with such bank or trust company the Exchange Agent, which agreement shall be reasonably acceptable to ReShape Union (the “Exchange Agent Agreement”), and shall provide that, at the Effective Time, Obalon Visor shall deposit, for the benefit of the holders of the shares of ReShape Common Stock or ReShape Series B Preferred StockUnion Shares, Obalon with the Exchange Agent Visor Shares representing the Merger Consideration and an amount of cash in lieu of fractional Visor Shares to be paid in accordance with the Exchange AgentSection 2.10(d). The Obalon Visor Shares and cash in lieu of fractional Visor Shares so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the “Exchange Fund”.
(b) Without At the Effective Time and without any action on the part of any holder, Obalon all Book-Entry Shares shall be deemed surrendered to the Exchange Agent and Visor shall cause the Exchange Agent to (i) issue, as of the Effective Time, deliver to each holder of Book-Entry Shares that number of uncertificated whole Obalon Visor Shares that the holder is entitled to receive pursuant to this Article ARTICLE 2 and cancel such Book-Entry Shares and (ii) mail to each holder of Book-Entry Shares a check in the amount of any cash payable in respect of such holder of Book-Entry Shares pursuant to Section 2.07(b2.10(d). .
(c) As soon as practicable after the Effective Time, and in any event within two Business Days, Obalon Visor shall cause the Exchange Agent to mail to the record holders of ReShape Stock Certificates: Union Share Certificates (i) a letter of transmittal in customary form and containing such provisions as Obalon Visor and ReShape Union may reasonably specify (including a provision confirming that delivery of ReShape Stock Union Share Certificates shall be effected, and risk of loss and title to the shares of ReShape Common Stock or ReShape Series B Preferred Stock Union Shares shall pass, only upon delivery of such ReShape Stock Union Share Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the ReShape Stock Union Share Certificates in exchange for the Obalon Visor Shares, as provided in Section 2.07(a2.08(a). Upon surrender of a ReShape Stock Union Share Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or ObalonVisor, (A) the holder of such ReShape Stock Union Share Certificate shall be entitled to receive in exchange a certificate or evidence of shares in book entry form representing the number of whole Obalon Visor Shares that such holder has the right to receive pursuant to the provisions of Section 2.07(a2.08(a) (and cash in lieu of any fractional Obalon SharesVisor Shares pursuant to Section 2.10(d)) and (B) the ReShape Stock Union Share Certificate so surrendered shall immediately be canceled. Until surrendered as contemplated by this Section 2.09(c2.10(c), each ReShape Stock Union Share Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Obalon Visor Shares (and cash in lieu of any fractional Obalon SharesVisor Shares pursuant to Section 2.10(d)) as contemplated by this Article ARTICLE 2 and any distribution or dividend with respect to Obalon Visor Shares, the record date for which is after the Effective Time. In the event of a transfer of ownership of shares of ReShape Common Stock or ReShape Series B Preferred Stock Union Shares that is not registered in the transfer records of ReShapeUnion, a certificate or evidence of shares in book-entry form representing the proper number of Obalon Visor Shares may be issued to a Person other than the Person in whose name the ReShape Stock Union Share Certificate so surrendered is registered if such ReShape Stock Union Share Certificate shall be properly endorsed or otherwise be in proper form for transfer transfer, and the Person requesting such issuances shall pay any transfer or other Taxes required by reason of the issuance of the Obalon Visor Shares to a Person person other than the registered holder of such shares of ReShape Common Stock or ReShape Series B Preferred Stock Union Shares or establish to the satisfaction of Obalon Visor that such Taxes have been paid or are not applicable. If any ReShape Stock Union Share Certificate shall have been lost, stolen or destroyed, Obalon Visor may, in its discretion and as a condition precedent to the issuance of any certificate or evidence of shares in book-entry form representing Obalon Visor Shares, require the owner of such lost, stolen or destroyed ReShape Stock Union Share Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Obalon may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Obalon, or the Surviving Corporation with respect to such ReShape Stock Certificateaffidavit.
(d) Any holder of Union Share Certificates and Book-Entry Shares formerly representing Union Shares who otherwise would be entitled to receive a fractional Visor Share (after aggregating all fractional Visor Shares issuable to such holder) will, in lieu of such fractional Visor Share and upon surrender of such holder’s Union Share Certificate or Book-Entry Shares representing such fractional Visor Shares, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Visor Shares on the NASDAQ on the date immediately preceding the Closing Date. As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of Union Share Certificates and Book-Entry Shares formerly representing Union Shares with respect to any fractional share interest, the Exchange Agent shall make available such amounts to such holders of Union Share Certificates and Book-Entry Shares, subject to and in accordance with the terms of this Section 2.10.
(e) All Visor Shares to be issued and delivered to the Exchange Agent pursuant to this Section 2.10 shall be deemed issued and outstanding as of the Effective Time, and whenever a dividend or other distribution is declared by Visor in respect of Visor Shares, the record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all Visor Shares issuable pursuant to this Agreement. No dividends or other distributions declared or made with respect to the Obalon Visor Shares with a record date after the Effective Time shall be paid to the holder of an unsurrendered ReShape Stock Union Share Certificate with respect to the Obalon Visor Shares that such holder has the right to receive pursuant to the Merger until such holder surrenders such ReShape Stock Union Share Certificate in accordance with this Section 2.092.10. All such dividends and other distributions shall be paid by Obalon Visor to the Exchange Agent after deduction of any applicable Taxes and shall be included in the Exchange Fund, in each case until the surrender of such ReShape Stock Union Share Certificate in accordance with this Section 2.092.10. Following Subject to the effect of applicable Laws, following surrender of any such ReShape Stock Union Share Certificate there shall be paid to the recordholder thereof, without interest, (A) at the appropriate payment datetime of such surrender, the amount of dividends or other distributions with a record date after the Effective Time but prior theretofore payable with respect to such surrender Visor Shares and not paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to such Visor Shares with a record date after the Effective Time but with a payment date subsequent to such surrender payable with respect to such Obalon Sharessurrender.
(ef) Any portion of the Exchange Fund that remains undistributed to holders of ReShape Stock Union Share Certificates as of the date one (1) year after the Closing Date shall be delivered to Obalon Visor upon demand demand, and any holders of ReShape Stock Union Share Certificates who have not therefore theretofore surrendered their ReShape Stock Union Share Certificates to the Exchange Agent in accordance with this Section 2.09(e) 2.10(f), as well as any holders of Book-Entry Shares who have not theretofore cashed any check payable to them in accordance with Section 2.07(b2.10(d), shall thereafter look only to Obalon Visor for satisfaction of their claims for Obalon Visor Shares, cash in lieu of fractional Obalon Visor Shares and any dividends or distributions with respect to Obalon Visor Shares, subject to applicable abandonee abandoned property law, escheat law or similar Law.
(fg) Neither Obalon Visor nor the Surviving Corporation Company shall be liable to any current or former holder of ReShape Common Stock or ReShape Series B Preferred Stock Union Shareholder or to any other Person with respect to any Obalon Visor Shares (or dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property law, escheat law or similar Law. If any ReShape Stock Union Share Certificate shall not have been surrendered prior to five (5) years after the Closing Date (or immediately prior to such earlier date on which any Obalon Visor Shares or any dividends or other distributions payable to the holder of such ReShape Stock Union Share Certificate would otherwise escheat to or become the property of any Governmental Body), any Obalon Visor Shares issuable upon the surrender of, or any dividends or other distributions in respect of, such ReShape Stock Union Share Certificate shall, to the extent permitted by applicable Law, become the property of ObalonVisor, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Uroplasty Inc), Merger Agreement (Vision Sciences Inc /De/)
Exchange Fund; Exchange of Certificates. (a) Prior to the Closing Date, Obalon Trooper and ReShape Ranger shall mutually select a bank or trust company, which may be the transfer agent for the Obalon Trooper Shares, to act as escrow and exchange agent in the Merger (the “Escrow and Exchange Agent”), and, not later than the Effective Time, Obalon Trooper shall enter into an agreement with such bank or trust company company, which agreement shall be reasonably acceptable to ReShape Ranger (the “Escrow Agency Agreement”).
(b) Upon the terms and subject to the conditions of this Agreement and the Escrow Agency Agreement, as soon as possible on the Closing Date after the Effective Time:
(i) In order to facilitate the payment of the Merger Consideration to the former Ranger Shareholders, Holdco shall provide thatissue to the Escrow and Exchange Agent (1) a promissory note receivable on Holdco (the terms and conditions, including principal amount, for which to be mutually agreed upon by the parties prior to the Closing Date) (the “Holdco Note”) and (2) all of the issued and outstanding shares of common stock, par value $0.01 per share, of Holdco (the “Holdco Shares”), which Holdco Note and Holdco Shares shall have an aggregate value equal to the aggregate value of the Ranger Shares outstanding immediately prior to the Effective Time, including shares outstanding pursuant to Section 2.08(b)(i) (other than Excluded Shares). The Escrow and Exchange Agent shall receive the Holdco Note and the Holdco Shares to facilitate the payment of the Merger Consideration. The holding of the Holdco Note and Holdco Shares by the Escrow and Exchange Agent is for the indirect benefit of the former Ranger Shareholders in that the holding of the Holdco Note and Holdco Shares will be for the purposes of paying up the Trooper Shares to be issued as Merger Consideration to the former Ranger Shareholders.
(ii) In accordance with provisions of Section 2:94b of the Dutch Civil Code, the Escrow and Exchange Agent shall contribute the Holdco Note and Holdco Shares that were issued to the Escrow and Exchange Agent to Trooper as a contribution in kind (inbreng op aandelen xxxxxx xxx in geld) to pay up the Trooper Shares to be issued as Merger Consideration.
(iii) In accordance with provisions of Section 2:94b of the Dutch Civil Code and in consideration of the contribution pursuant to Section 2.10(b)(ii), Trooper shall issue and deliver, at the Effective Time, Obalon shall deposit, Time to the Escrow and Exchange Agent solely for the account and benefit of the holders former Ranger Shareholders, the maximum number of the shares of ReShape Common Stock or ReShape Series B Preferred Stock, Obalon Trooper Shares representing that have become issuable pursuant to Section 2.08(a)(ii) for delivery to the Merger Consideration with the Exchange Agent. The Obalon recipients entitled thereto (such Trooper Shares so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as being the “Exchange Fund”). At the Effective Time, the obligations of Trooper, Holdco and the Escrow and Exchange Agent under this Section 2.10(b) shall be unconditional.
(bc) Without At the Effective Time and without any action on the part of any holder, Obalon all Book-Entry Shares shall be deemed surrendered to the Escrow and Exchange Agent and Trooper shall cause the Escrow and Exchange Agent to (i) issue, as of the Effective Time, deliver to each holder of Book-Entry Shares that number of uncertificated whole Obalon Trooper Shares that the holder is entitled to receive pursuant to this Article ARTICLE 2 and cancel such Book-Entry Shares and (ii) mail to each holder of Book-Entry Shares a check in the amount of any cash payable in respect of such holder Book-Entry Shares pursuant to Section 2.07(b2.10(e). .
(cd) As soon as practicable after the Effective Time, and in any event within two Business Days, Obalon Trooper shall cause the Escrow and Exchange Agent to mail to the record holders of ReShape Stock Certificates: Ranger Share Certificates (i) a letter of transmittal in customary form and containing such provisions as Obalon Trooper and ReShape Ranger may reasonably specify (including a provision confirming that delivery of ReShape Stock Ranger Share Certificates shall be effected, and risk of loss and title to the shares of ReShape Common Stock or ReShape Series B Preferred Stock Ranger Shares shall pass, only upon delivery of such ReShape Stock Ranger Share Certificates to the Escrow and Exchange Agent) and (ii) instructions for use in effecting the surrender of the ReShape Stock Ranger Share Certificates in exchange for the Obalon Trooper Shares, as provided in Section 2.07(a2.08(a). Upon surrender of a ReShape Stock Ranger Share Certificate to the Escrow and Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Escrow and Exchange Agent or ObalonTrooper, (A) the holder of such ReShape Stock Ranger Share Certificate shall be entitled to receive in exchange a certificate or evidence of shares in book entry form representing the number of whole Obalon Trooper Shares that such holder has the right to receive pursuant to the provisions of Section 2.07(a2.08(a) (and cash in lieu of any fractional Obalon SharesTrooper Shares pursuant to Section 2.10(e)) and (B) the ReShape Stock Ranger Share Certificate so surrendered shall immediately be canceled. Until surrendered as contemplated by this Section 2.09(c2.10(d), each ReShape Stock Ranger Share Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Obalon Trooper Shares (and cash in lieu of any fractional Obalon SharesTrooper Shares pursuant to Section 2.10(e)) as contemplated by this Article ARTICLE 2 and any distribution or dividend with respect to Obalon Trooper Shares, the record date for which is after the Effective Time. In the event of a transfer of ownership of shares of ReShape Common Stock or ReShape Series B Preferred Stock Ranger Shares that is not registered in the transfer records of ReShapeRanger, a certificate or evidence of shares in book-entry form representing the proper number of Obalon Trooper Shares may be issued to a Person other than the Person in whose name the ReShape Stock Ranger Share Certificate so surrendered is registered if such ReShape Stock Ranger Share Certificate shall be properly endorsed or otherwise be in proper form for transfer transfer, and the Person requesting such issuances shall pay any transfer or other Taxes required by reason of the issuance of the Obalon Trooper Shares to a Person person other than the registered holder of such shares of ReShape Common Stock or ReShape Series B Preferred Stock Ranger Shares or establish to the satisfaction of Obalon Trooper that such Taxes have been paid or are not applicable. If any ReShape Stock Ranger Share Certificate shall have been lost, stolen or destroyed, Obalon Trooper may, in its discretion and as a condition precedent to the issuance of any certificate or evidence of shares in book-entry form representing Obalon Trooper Shares, require the owner of such lost, stolen or destroyed ReShape Stock Ranger Share Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Obalon Trooper may reasonably direct) as indemnity against any claim that may be made against the Escrow and Exchange Agent, ObalonTrooper, Holdco, or the Surviving Corporation with respect to such ReShape Stock Ranger Share Certificate.
(de) As promptly as practicable following the Effective Time, the Escrow and Exchange Agent shall determine the excess of (A) the number of whole Trooper Shares issued and delivered to the Escrow and Exchange Agent pursuant to Section 2.10(b) representing the Merger Consideration over (B) the aggregate number of whole Trooper Shares to be distributed to former holders of Ranger Shares pursuant to Section 2.08(a) and Section 2.08(b)(ii) (determined before taking into account any Trooper Shares withheld under Section 2.11) (such excess, the “Trooper Excess Shares”). Following the Effective Time, the Escrow and Exchange Agent shall, on behalf of former shareholders of Ranger, sell the Trooper Excess Shares at then prevailing prices on the NASDAQ, all in the manner provided in Section 2.10(e)(i).
(i) The sale of the Trooper Excess Shares by the Escrow and Exchange Agent shall be executed on the NASDAQ through one or more member firms of the NASDAQ and shall be executed in round lots to the extent practicable. The Escrow and Exchange Agent shall use commercially reasonable efforts to complete the sale of the Trooper Excess Shares as promptly following the Effective Time as is practicable, consistent with obtaining the best execution of such sales in light of prevailing market conditions. Until the net proceeds of such sale or sales have been distributed to the holders of Ranger Share Certificates and Book-Entry Shares formerly representing Ranger Shares, the Escrow and Exchange Agent shall hold such proceeds in trust for holders of Ranger Shares (the “Ranger Shares Trust”). Trooper shall pay all commissions, transfer taxes and other out-of-pocket transaction costs, including the expenses and compensation of the Escrow and Exchange Agent incurred in connection with such sale of Trooper Excess Shares. The Escrow and Exchange Agent shall determine the portion of the Ranger Shares Trust to which each former Ranger Shareholder is entitled, if any, by multiplying that amount of the aggregate net proceeds composing the Ranger Shares Trust by a fraction, the numerator of which is the amount of the fractional share interest to which such former Ranger Shareholder is entitled (after taking into account all Ranger Shares held as of immediately prior to the Effective Time by such holder) and the denominator of which is the aggregate amount of fractional share interests to which all former holders of Ranger Shares are entitled.
(ii) As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of Ranger Share Certificates and Book-Entry Shares formerly representing Ranger Shares with respect to any fractional share interest, the Escrow and Exchange Agent shall make available such amounts to such holders of Ranger Share Certificates and Book-Entry Shares, subject to and in accordance with the terms of this Section 2.10.
(f) All Trooper Shares to be issued and delivered to the Escrow and Exchange Agent pursuant to this Section 2.10 shall be deemed issued and outstanding as of the Effective Time, and whenever a dividend or other distribution is declared by Trooper in respect of Trooper Shares, the record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all Trooper Shares issuable pursuant to this Agreement. No dividends or other distributions declared or made with respect to the Obalon Trooper Shares with a record date after the Effective Time shall be paid to the holder of an unsurrendered ReShape Stock Ranger Share Certificate with respect to the Obalon Trooper Shares that such holder has the right to receive pursuant to the Merger until such holder surrenders such ReShape Stock Ranger Share Certificate in accordance with this Section 2.092.10. All such dividends and other distributions shall be paid by Obalon Trooper to the Escrow and Exchange Agent after deduction of any applicable Taxes and shall be included in the Exchange Fund, in each case until the surrender of such ReShape Stock Ranger Share Certificate in accordance with this Section 2.092.10. Following Subject to the effect of applicable Laws, following surrender of any such ReShape Stock Ranger Share Certificate there shall be paid to the recordholder thereof, without interest, (A) at the appropriate payment datetime of such surrender, the amount of dividends or other distributions with a record date after the Effective Time but prior theretofore payable with respect to such surrender Trooper Shares and not paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to such Trooper Shares with a record date after the Effective Time but with a payment date subsequent to such surrender payable with respect to such Obalon Sharessurrender.
(eg) Any portion of the Exchange Fund that remains undistributed to holders of ReShape Stock Ranger Share Certificates as of the date one (1) year after the Closing Date shall be delivered to Obalon Trooper upon demand demand, and any holders of ReShape Stock Ranger Share Certificates who have not therefore theretofore surrendered their ReShape Stock Ranger Share Certificates to the Escrow and Exchange Agent in accordance with this Section 2.09(e) 2.10(g), as well as any holders of Book-Entry Shares who have not theretofore cashed any check payable to them in accordance with Section 2.07(b2.10(e), shall thereafter look only to Obalon Trooper for satisfaction of their claims for Obalon Trooper Shares, cash in lieu of fractional Obalon Trooper Shares and any dividends or distributions with respect to Obalon Trooper Shares, subject to applicable abandonee abandoned property law, escheat law or similar Law.
(fh) Neither Obalon Trooper, Holdco, nor the Surviving Corporation shall be liable to any current or former holder of ReShape Common Stock or ReShape Series B Preferred Stock Ranger Shareholder or to any other Person with respect to any Obalon Trooper Shares (or dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property law, escheat law or similar Law. If any ReShape Stock Ranger Share Certificate shall not have been surrendered prior to five (5) years after the Closing Date (or immediately prior to such earlier date on which any Obalon Trooper Shares or any dividends or other distributions payable to the holder of such ReShape Stock Ranger Share Certificate would otherwise escheat to or become the property of any Governmental Body), any Obalon Trooper Shares issuable upon the surrender of, or any dividends or other distributions in respect of, such ReShape Stock Ranger Share Certificate shall, to the extent permitted by applicable Law, become the property of ObalonTrooper, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Tornier N.V.), Merger Agreement (Wright Medical Group Inc)
Exchange Fund; Exchange of Certificates. (a) Prior to the Closing Date, Obalon and ReShape Parent shall mutually select a bank or trust company, which may be the transfer agent for the Obalon Parent Shares, to act as exchange agent in the Merger (the “Exchange Agent”), and, not later than the Effective Time, Obalon Parent shall enter into an agreement with such bank or trust company company, which agreement shall be reasonably acceptable to ReShape and shall provide thatthe Company (the “Exchange Agency Agreement”), at for the payment of the Merger Consideration as provided in Section 2.06.
(b) Prior to or concurrent with the Effective Time, Obalon Parent shall deposit, issue and deliver to the Exchange Agent solely for the account and benefit of the holders former Company Stockholders, one or more certificates representing the maximum aggregate number of the shares of ReShape Common Stock or ReShape Series B Preferred Stock, Obalon Parent Shares representing that have become issuable pursuant to Section 2.06(a)(ii) for delivery to the Merger Consideration with the Exchange Agent. The Obalon recipients entitled thereto and/or make appropriate alternative arrangements if uncertificated shares of Parent Shares so deposited with the Exchange Agent, together with any dividends or distributions received represented by the Exchange Agent with respect to Book-Entry Shares will be issued (such shares, are referred to collectively as Parent Shares being the “Exchange Fund”).
(bc) Without At the Effective Time and without any action on the part of any holder, Obalon all Book-Entry Shares shall be deemed surrendered to the Exchange Agent and Parent shall cause the Exchange Agent to (i) issue, as of the Effective Time, deliver to each holder of Book-Entry Shares that number of uncertificated whole Obalon Parent Shares that the holder is entitled to receive pursuant to this Article ARTICLE 2 and cancel such Book-Entry Shares and (ii) mail to each holder of Book-Entry Shares a check in the amount of any cash payable in respect of such holder Book-Entry Shares pursuant to Section 2.07(b). Shares.
(cd) As soon promptly as reasonably practicable after the Effective Time, and but in any event within two five (5) Business DaysDays thereafter, Obalon Parent shall cause the Exchange Agent to mail to the record holders of ReShape Stock the Company Share Certificates: (i) a notice advising such holder of the effectiveness of the Merger; (ii) a letter of transmittal in customary form and containing such provisions as Obalon Parent and ReShape the Company may reasonably specify (including a provision confirming that delivery of ReShape Stock the Company Share Certificates shall be effected, and risk of loss and title to the shares of ReShape Common Stock or ReShape Series B Preferred Stock Company Shares shall pass, only upon delivery of such ReShape Stock Company Share Certificates to the Exchange Agent) ); and (iiiii) instructions for use in effecting the surrender of the ReShape Stock Company Share Certificates in exchange for the Obalon Parent Shares, as provided in Section 2.07(a2.06(a). Upon surrender of a ReShape Stock Company Share Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or ObalonParent, (A) the holder of such ReShape Stock Company Share Certificate shall be entitled to receive in exchange a certificate or evidence of shares in book entry form representing the number of whole Obalon Parent Shares that such holder has the right to receive pursuant to the provisions of Section 2.07(a) (and cash in lieu of any fractional Obalon Shares2.06(a) and (B) the ReShape Stock Company Share Certificate so surrendered shall immediately be canceled. Until surrendered as contemplated by this Section 2.09(c2.08(d), each ReShape Stock Company Share Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Obalon Parent Shares (and cash in lieu of any fractional Obalon Shares) as contemplated by this Article ARTICLE 2 and any distribution or dividend with respect to Obalon Parent Shares, the record date for which is after the Effective Time. In the event of a transfer of ownership of shares of ReShape Common Stock or ReShape Series B Preferred Stock the Company Shares that is not registered in the transfer records of ReShapethe Company, a certificate or evidence of shares in book-entry form representing the proper number of Obalon Parent Shares may be issued to a Person other than the Person in whose name the ReShape Stock Company Share Certificate so surrendered is registered if such ReShape Stock Company Share Certificate shall be properly endorsed or otherwise be in proper form for transfer transfer, and the Person requesting such issuances shall pay any transfer or other Taxes required by reason of the issuance of the Obalon Parent Shares to a Person person other than the registered holder of such shares of ReShape Common Stock or ReShape Series B Preferred Stock Company Shares or establish to the satisfaction of Obalon Parent that such Taxes have been paid or are not applicable. If any ReShape Stock Company Share Certificate shall have been lost, stolen or destroyed, Obalon Parent may, in its discretion and as a condition precedent to the issuance of any certificate or evidence of shares in book-entry form representing Obalon Parent Shares, require the owner of such lost, stolen or destroyed ReShape Stock Company Share Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Obalon Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, ObalonParent, or the Surviving Corporation with respect to such ReShape Stock Company Share Certificate.
(de) All Parent Shares to be issued and delivered to the Exchange Agent pursuant to this Section 2.08 shall be deemed issued and outstanding as of the Effective Time, and whenever a dividend or other distribution is declared by Parent in respect of Parent Shares, the record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all Parent Shares issuable pursuant to this Agreement. No dividends or other distributions declared or made with respect to the Obalon Parent Shares with a record date after the Effective Time shall be paid to the holder of an unsurrendered ReShape Stock Company Share Certificate with respect to the Obalon Parent Shares that such holder has the right to receive pursuant to the Merger until such holder surrenders such ReShape Stock Company Share Certificate in accordance with this Section 2.092.08. All such dividends and other distributions shall be paid by Obalon Parent to the Exchange Agent after deduction of any applicable Taxes and shall be included in the Exchange Fund, in each case until the surrender of such ReShape Stock Company Share Certificate in accordance with this Section 2.092.08. Following Subject to the effect of applicable Laws, following the surrender of any such ReShape Stock Certificate Company Share Certificate, there shall be paid to the recordholder thereof, without interest, (i) at the appropriate payment datetime of such surrender, the amount of dividends or other distributions with a record date after the Effective Time but prior theretofore payable with respect to such surrender Parent Shares and not paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such Parent Shares with a record date after the Effective Time but with a payment date subsequent to such surrender payable with respect to such Obalon Sharessurrender.
(ef) Any portion of the Exchange Fund that remains undistributed to holders of ReShape Stock Company Share Certificates as of the date one (1) year after the Closing Date shall be delivered to Obalon Parent upon demand demand, and any holders of ReShape Stock Company Share Certificates who have not therefore theretofore surrendered their ReShape Stock Company Share Certificates to the Exchange Agent in accordance with this Section 2.09(e) 2.08(f), as well as any holders of Book-Entry Shares who have not theretofore cashed any check payable to them in accordance with Section 2.07(b2.06(c), shall thereafter look only to Obalon Parent for satisfaction of their claims for Obalon Shares, cash in lieu of fractional Obalon Parent Shares and any dividends or distributions with respect to Obalon Parent Shares, subject to applicable abandonee abandoned property law, escheat law or similar Law.
(fg) Neither Obalon Parent nor the Surviving Corporation shall be liable to any current or former holder of ReShape Common Stock or ReShape Series B Preferred Stock Company Stockholder or to any other Person with respect to any Obalon Parent Shares (or dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property law, escheat law or similar Law. If any ReShape Stock Company Share Certificate shall not have been surrendered prior to five (5) years after the Closing Date (or immediately prior to such earlier date on which any Obalon Parent Shares or any dividends or other distributions payable to the holder of such ReShape Stock Company Share Certificate would otherwise escheat to or become the property of any Governmental BodyAuthority), any Obalon Parent Shares issuable upon the surrender of, or any dividends or other distributions in respect of, such ReShape Stock Company Share Certificate shall, to the extent permitted by applicable Law, become the property of ObalonParent, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (McEwen Mining Inc.), Merger Agreement (Timberline Resources Corp)
Exchange Fund; Exchange of Certificates. (a) Prior to the Closing Date, Obalon Northeast Utilities and ReShape NSTAR shall mutually select a bank or trust company, which may be the transfer agent for the Obalon Northeast Utilities Common Shares, to act as exchange agent in the Merger (the “Exchange Agent”), and, not later than the Effective Time, Obalon Northeast Utilities shall enter into an agreement with such bank or trust company which agreement shall be reasonably acceptable to ReShape NSTAR and shall provide that, at the Effective Time, Obalon Northeast Utilities shall deposit, for the benefit of the holders of the shares of ReShape Common Stock or ReShape Series B Preferred Stock, Obalon Shares representing the Merger Consideration deposit with the Exchange Agent. Agent all of the Northeast Utilities Common Shares issuable pursuant to this Article I. The Obalon Northeast Utilities Common Shares so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the “Exchange Fund.”.
(b) Without any action on the part of any holder, Obalon shall cause the Exchange Agent to (i) issue, as of the Effective Time, to each holder of Book-Entry Shares that number of uncertificated whole Obalon Shares that the holder is entitled to receive pursuant to this Article 2 and cancel such Book-Entry Shares and (ii) mail to each holder of Book-Entry Shares a check in the amount of any cash payable in respect of such holder Book-Entry Shares pursuant to Section 2.07(b).
(c) As soon as practicable after the Effective Time, and in any event within two Business Days, Obalon Northeast Utilities shall cause the Exchange Agent to mail to the record holders of ReShape Stock NSTAR Share Certificates: (i) a letter of transmittal in customary form and containing such provisions as Obalon Northeast Utilities and ReShape NSTAR may reasonably specify (including a provision confirming that delivery of ReShape Stock NSTAR Share Certificates shall be effected, and risk of loss and title to the shares of ReShape Common Stock or ReShape Series B Preferred Stock NSTAR Share Certificates shall pass, only upon delivery of such ReShape Stock NSTAR Share Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the ReShape Stock NSTAR Share Certificates in exchange for the Obalon Northeast Utilities Common Shares, as provided in Section 2.07(a)1.6. Upon surrender of a ReShape Stock NSTAR Share Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or ObalonNortheast Utilities, (A) the holder of such ReShape Stock NSTAR Share Certificate shall be entitled to receive in exchange a certificate or evidence of shares in book book-entry form representing the number of whole Obalon Northeast Utilities Common Shares that such holder has the right to receive pursuant to the provisions of Section 2.07(a) 1.6 (and cash in lieu of any fractional Obalon share of Northeast Utilities Common Shares) and (B) the ReShape Stock NSTAR Share Certificate so surrendered shall be immediately be canceled. Until surrendered as contemplated by this Section 2.09(c)1.8, each ReShape Stock NSTAR Share Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Obalon Northeast Utilities Common Shares (and cash in lieu of any fractional Obalon share of Northeast Utilities Common Shares) as contemplated by this Article 2 I and any distribution or dividend with respect to Obalon Northeast Utilities Common Shares, the record date for which is after the Effective Time. In the event of a transfer of ownership of shares of ReShape NSTAR Common Stock or ReShape Series B Preferred Stock Shares that is not registered in the transfer records of ReShapeNSTAR, a certificate or evidence of shares in book-entry form representing the proper number of Obalon Northeast Utilities Common Shares may be issued to a Person other than the Person in whose name the ReShape Stock a NSTAR Share Certificate so surrendered is registered if such ReShape Stock NSTAR Share Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such issuances issuance shall pay any transfer or other Taxes required by reason of the issuance of the Obalon Northeast Utilities Common Shares to a Person other than the registered holder of such shares of ReShape Common Stock or ReShape Series B Preferred Stock NSTAR Share Certificate or establish to the satisfaction of Obalon Northeast Utilities that such Taxes have been paid or are not applicable. If any ReShape Stock NSTAR Share Certificate shall have been lost, stolen or destroyed, Obalon Northeast Utilities may, in its discretion and as a condition precedent to the issuance of any certificate or evidence of shares in book-entry form representing Obalon Northeast Utilities Common Shares, require the owner of such lost, stolen or destroyed ReShape Stock NSTAR Share Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Obalon Northeast Utilities may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, ObalonNortheast Utilities, the Surviving Trust or the Surviving Corporation Company with respect to such ReShape NSTAR Share Certificate.
(c) As promptly as practicable following the Effective Time, the Exchange Agent shall determine the excess of (A) the number of whole shares of Northeast Utilities Common Shares delivered to the Exchange Agent pursuant to Section 1.8(a) representing the Merger Consideration over (B) the aggregate number of whole shares of Northeast Utilities Common Shares which would be distributed to all former holders of outstanding NSTAR Common Shares pursuant to Section 1.6 (such excess being herein called the “Northeast Utilities Excess Shares”). Following the Effective Time, the Exchange Agent shall, on behalf of former shareholders of NSTAR, sell the Northeast Utilities Excess Shares at then prevailing prices on the New York Stock CertificateExchange, Inc. (the “NYSE”), all in the manner provided in Section 1.8(c)(ii).
(i) The sale of the Northeast Utilities Excess Shares 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. The Exchange Agent shall use reasonable efforts to complete the sale of the Northeast Utilities Excess Shares as promptly following the Effective Time as, in the Exchange Agent’s sole judgment, is practicable consistent with obtaining the best execution of such sales in light of prevailing market conditions. Until the net proceeds of such sale or sales have been distributed to the holders of NSTAR Share Certificates formerly representing NSTAR Common Shares, the Exchange Agent shall hold such proceeds in trust for holders of NSTAR Common Shares (the “NSTAR Common Shares Trust”). Northeast Utilities shall pay all commissions, transfer Taxes and other out-of-pocket transaction costs, including the expenses and compensation of the Exchange Agent, incurred in connection with such sale of the Northeast Utilities Excess Shares. The Exchange Agent shall determine the portion of the NSTAR Common Shares Trust to which each former holder of NSTAR Common Shares is entitled, if any, by multiplying the amount of the aggregate net proceeds composing the NSTAR Common Shares Trust by a fraction, the numerator of which is the amount of the fractional share interest to which such former holder of NSTAR Common Shares is entitled (after taking into account all NSTAR Common Shares held as of immediately prior to the Effective Time by such holder) and the denominator of which is the aggregate amount of fractional share interests to which all former holders of NSTAR Common Shares are entitled.
(ii) As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of NSTAR Share Certificates formerly representing NSTAR Common Shares with respect to any fractional share interests, the Exchange Agent shall make available such amounts to such holders of NSTAR Share Certificates formerly representing NSTAR Common Shares, subject to and in accordance with the terms of this Section 1.8.
(d) No dividends or other distributions declared or made with respect to the Obalon Northeast Utilities Common Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered ReShape Stock NSTAR Share Certificate with respect to the Obalon Northeast Utilities Common Shares that such holder has the right to receive pursuant to the Merger until such holder surrenders such ReShape Stock NSTAR Share Certificate in accordance with this Section 2.09. All such dividends and other distributions shall be paid by Obalon to the Exchange Agent and shall be included in the Exchange Fund, in each case until the surrender of such ReShape Stock Certificate in accordance with this Section 2.09. Following surrender of any such ReShape Stock Certificate there shall be paid to the recordholder thereof, 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 with a payment date subsequent to such surrender payable with respect to such Obalon Shares1.8.
(e) Any portion of the Exchange Fund that remains undistributed to holders of ReShape Stock NSTAR Share Certificates or Book-Entry Shares as of the date one (1) year after the Closing Date Effective Time shall be delivered to Obalon Northeast Utilities upon demand demand, and any holders of ReShape Stock NSTAR Share Certificates who have not therefore theretofore surrendered their ReShape Stock NSTAR Share Certificates to the Exchange Agent in accordance with this Section 2.09(e) 1.8, and any holders of Book-Entry Shares who have not theretofore cashed any check payable to them in accordance with Section 2.07(b)1.9, shall thereafter look only to Obalon Northeast Utilities for satisfaction of their claims for Obalon Northeast Utilities Common Shares, cash in lieu of fractional Obalon shares of Northeast Utilities Common Shares and any dividends or distributions with respect to Obalon Northeast Utilities Common Shares, subject to applicable abandonee abandoned property law, escheat law laws or similar LawLaws.
(f) Each of the Exchange Agent, Northeast Utilities, Merger Sub, Acquisition Sub, NSTAR, the Surviving Trust and the Surviving Company shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign Tax Law or under any other applicable Law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes of this Agreement as having been paid or delivered to the Persons to whom such amounts would otherwise have been paid or delivered.
(g) Neither Obalon Northeast Utilities, the Surviving Trust nor the Surviving Corporation Company shall be liable to any current holder or former holder of ReShape NSTAR Common Stock or ReShape Series B Preferred Stock Shares or to any other Person with respect to any Obalon Northeast Utilities Common Shares (or dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property law, escheat law or similar Law. If any ReShape Stock NSTAR Share Certificate shall not have been surrendered prior to five (5) years after the Closing Date Effective Time (or immediately prior to such earlier date on which any Obalon Northeast Utilities Common Shares or any dividends or other distributions payable to the holder of such ReShape Stock NSTAR Share Certificate would otherwise escheat to or become the property of any Governmental BodyEntity), any Obalon Northeast Utilities Common Shares issuable upon the surrender of, or any dividends or other distributions in respect of, such ReShape Stock NSTAR Share Certificate shall, to the extent permitted by applicable Law, become the property of ObalonNortheast Utilities, free and clear of all claims or interest of any Person previously entitled thereto.
(h) For purposes of this Agreement, “Law” shall mean any applicable federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity, including any Environmental Law.
Appears in 1 contract
Samples: Merger Agreement (Nstar/Ma)
Exchange Fund; Exchange of Certificates. (a) Prior to the Closing Date, Obalon Orthofix and ReShape SeaSpine shall mutually select a bank or trust company, which may be the transfer agent for the Obalon Orthofix Shares, to act as exchange agent in the Merger (the “Exchange Agent”), and, not later than the Effective Time, Obalon Orthofix shall enter into an agreement with such bank or trust company company, which agreement shall be reasonably acceptable to ReShape and shall provide that, at SeaSpine (the Effective Time, Obalon shall deposit“Exchange Agency Agreement”), for the payment of the Merger Consideration as provided in Section 2.08.
(b) Orthofix shall issue and deliver, prior to or concurrent with the Effective Time to the Exchange Agent solely for the account and benefit of the holders former SeaSpine Stockholders, (i) the maximum number of the Orthofix Shares that have become issuable pursuant to Section 2.08(a)(ii), including shares of ReShape Common Stock or ReShape Series B Preferred Stockoutstanding pursuant to Section 2.082.08(b)(i), Obalon Shares representing and Section 2.082.08(b)(ii) for delivery to the Merger Consideration with the Exchange Agent. The Obalon recipients entitled thereto (such Orthofix Shares so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as being the “Exchange Fund”) and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 2.08(c) for delivery to the Merger Consideration recipients entitled thereto.
(bc) Without At the Effective Time and without any action on the part of any holder, Obalon all Book-Entry Shares shall be deemed surrendered to the Exchange Agent and Orthofix shall cause the Exchange Agent to to: (i) issue, as of the Effective Time, deliver to each holder of Book-Entry Shares that number of uncertificated whole Obalon Orthofix Shares that the holder is entitled to receive pursuant to this Article ARTICLE 2 and cancel such Book-Entry Shares Shares; and (ii) mail to each holder of Book-Entry Shares a check in the amount of any cash payable in respect of such holder holder’s Book-Entry Shares pursuant to Section 2.07(b2.08(c). .
(cd) As soon promptly as reasonably practicable after the Effective Time, and but in any event within two five (5) Business DaysDays thereafter, Obalon Orthofix shall cause the Exchange Agent to mail to the record holders of ReShape Stock SeaSpine Share Certificates: (i) a notice advising such holder of the effectiveness of the Merger; (ii) a letter of transmittal in customary form and containing such provisions as Obalon Orthofix and ReShape SeaSpine may reasonably specify (including a provision confirming that delivery of ReShape Stock SeaSpine Share Certificates shall be effected, and risk of loss and title to the shares of ReShape Common Stock or ReShape Series B Preferred Stock SeaSpine Shares shall pass, only upon delivery of such ReShape Stock SeaSpine Share Certificates to the Exchange Agent) ); and (iiiii) instructions for use in effecting the surrender of the ReShape Stock SeaSpine Share Certificates in exchange for the Obalon Orthofix Shares, as provided in Section 2.07(a2.08(a). Upon surrender of a ReShape Stock SeaSpine Share Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or ObalonOrthofix, (A) the holder of such ReShape Stock SeaSpine Share Certificate shall be entitled to receive in exchange a certificate or evidence of shares in book entry form representing the number of whole Obalon Orthofix Shares that such holder has the right to receive pursuant to the provisions of Section 2.07(a2.08(a) (and cash in lieu of any fractional Obalon SharesOrthofix Shares pursuant to Section 2.08(c)) and (B) the ReShape Stock SeaSpine Share Certificate so surrendered shall immediately be canceled. Until surrendered as contemplated by this Section 2.09(c2.10(d), each ReShape Stock SeaSpine Share Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Obalon Orthofix Shares (and cash in lieu of any fractional Obalon SharesOrthofix Shares pursuant to Section 2.08(c)) as contemplated by this Article ARTICLE 2 and any distribution or dividend with respect to Obalon Orthofix Shares, the record date for which is after the Effective Time. In the event of a transfer of ownership of shares of ReShape Common Stock or ReShape Series B Preferred Stock SeaSpine Shares that is not registered in the transfer records of ReShapeSeaSpine, a certificate or evidence of shares in book-entry form representing the proper number of Obalon Orthofix Shares may be issued to a Person other than the Person in whose name the ReShape Stock SeaSpine Share Certificate so surrendered is registered if such ReShape Stock SeaSpine Share Certificate shall be properly endorsed or otherwise be in proper form for transfer transfer, and the Person requesting such issuances shall pay any transfer or other Taxes required by reason of the issuance of the Obalon Orthofix Shares to a Person person other than the registered holder of such shares of ReShape Common Stock or ReShape Series B Preferred Stock SeaSpine Shares or establish to the satisfaction of Obalon Orthofix that such Taxes have been paid or are not applicable. If any ReShape Stock SeaSpine Share Certificate shall have been lost, stolen or destroyed, Obalon Orthofix may, in its discretion and as a condition precedent to the issuance of any certificate or evidence of shares in book-entry form representing Obalon Orthofix Shares, require the owner of such lost, stolen or destroyed ReShape Stock SeaSpine Share Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Obalon Orthofix may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, ObalonOrthofix, or the Surviving Corporation with respect to such ReShape Stock SeaSpine Share Certificate.
(de) All Orthofix Shares to be issued and delivered to the Exchange Agent pursuant to this Section 2.10 shall be deemed issued and outstanding as of the Effective Time, and whenever a dividend or other distribution is declared by Orthofix in respect of Orthofix Shares, the record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all Orthofix Shares issuable pursuant to this Agreement. No dividends or other distributions declared or made with respect to the Obalon Orthofix Shares with a record date after the Effective Time shall be paid to the holder of an unsurrendered ReShape Stock SeaSpine Share Certificate with respect to the Obalon Orthofix Shares that such holder has the right to receive pursuant to the Merger until such holder surrenders such ReShape Stock SeaSpine Share Certificate in accordance with this Section 2.092.10. All such dividends and other distributions shall be paid by Obalon Orthofix to the Exchange Agent after deduction of any applicable Taxes and shall be included in the Exchange Fund, in each case until the surrender of such ReShape Stock SeaSpine Share Certificate in accordance with this Section 2.092.10. Following Subject to the effect of applicable Laws, following surrender of any such ReShape Stock SeaSpine Share Certificate there shall be paid to the recordholder thereof, without interest, (i) at the appropriate payment datetime of such surrender, the amount of dividends or other distributions with a record date after the Effective Time but prior theretofore payable with respect to such surrender Orthofix Shares and not paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such Orthofix Shares with a record date after the Effective Time but with a payment date subsequent to such surrender payable with respect to such Obalon Sharessurrender.
(ef) Any portion of the Exchange Fund that remains undistributed to holders of ReShape Stock SeaSpine Share Certificates as of the date one (1) year after the Closing Date shall be delivered to Obalon Orthofix upon demand demand, and any holders of ReShape Stock SeaSpine Share Certificates who have not therefore theretofore surrendered their ReShape Stock SeaSpine Share Certificates to the Exchange Agent in accordance with this Section 2.09(e) 2.10(f), as well as any holders of Book-Entry Shares who have not theretofore cashed any check payable to them in accordance with Section 2.07(b2.08(c), shall thereafter look only to Obalon Orthofix for satisfaction of their claims for Obalon Orthofix Shares, cash in lieu of fractional Obalon Orthofix Shares and any dividends or distributions with respect to Obalon Orthofix Shares, subject to applicable abandonee abandoned property law, escheat law or similar Law.
(fg) Neither Obalon Orthofix, nor the Surviving Corporation shall be liable to any current or former holder of ReShape Common Stock or ReShape Series B Preferred Stock SeaSpine Stockholder or to any other Person with respect to any Obalon Orthofix Shares (or dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property law, escheat law or similar Law. If any ReShape Stock SeaSpine Share Certificate shall not have been surrendered prior to five (5) years after the Closing Date (or immediately prior to such earlier date on which any Obalon Orthofix Shares or any dividends or other distributions payable to the holder of such ReShape Stock SeaSpine Share Certificate would otherwise escheat to or become the property of any Governmental Body), any Obalon Orthofix Shares issuable upon the surrender of, or any dividends or other distributions in respect of, such ReShape Stock SeaSpine Share Certificate shall, to the extent permitted by applicable Law, become the property of ObalonOrthofix, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Exchange Fund; Exchange of Certificates. (a) Prior to the Closing DateAkebia shall designate American Stock Transfer & Trust Company, Obalon and ReShape shall mutually select a bank or trust company, which may be the transfer agent for the Obalon Shares, LLC to act as exchange agent in the Merger (the “Exchange Agent”), and, not later than ) for the payment and delivery of the Merger Consideration pursuant to an exchange agent agreement reasonably acceptable to Keryx. At or prior to the Effective Time, Obalon Akebia shall enter into an agreement cause to be deposited with such bank or trust company which agreement shall be reasonably acceptable to ReShape and shall provide that, at the Effective Time, Obalon shall depositExchange Agent, for the benefit of the holders of the shares of ReShape Common Stock or ReShape Series B Preferred StockKeryx Shareholders, Obalon Shares representing the Merger Consideration for exchange in accordance with the Exchange Agent. The Obalon Shares so deposited with this Article 1 through the Exchange Agent, together with any dividends or distributions received by on behalf of itself, the Exchange Agent with respect maximum number of Akebia Shares that become issuable pursuant to Section 1.07(a)(iii) for delivery to the Merger Consideration recipients entitled thereto (such shares, are referred to collectively as Akebia Shares being the “Exchange Fund”).
(b) Without At the Effective Time and without any action on the part of any holder, Obalon all Book-Entry Shares shall be deemed surrendered to the Exchange Agent, and Akebia shall cause the Exchange Agent to (i) issue, as of the Effective Time, deliver to each holder of Book-Entry Shares that number of uncertificated whole Obalon Akebia Shares that the holder is entitled to receive pursuant to this Article 2 1 and cancel such Book-Entry Shares and (ii) mail to each holder of Book-Entry Shares a check in the amount of any cash payable in respect of such holder Book-Entry Shares pursuant to Section 2.07(b1.09(d). .
(c) As soon as practicable after the Effective Time, and in any event within two Business Days, Obalon Akebia shall cause the Exchange Agent to mail to the record holders of ReShape Stock Certificates: Certificates (other than holders of Recap Shares and Excluded Shares) (i) a letter of transmittal in customary form and containing such provisions as Obalon Akebia and ReShape Keryx may reasonably specify (including a provision confirming that delivery of ReShape Stock Certificates shall be effected, and risk of loss and title to the shares of ReShape Common Stock or ReShape Series B Preferred Stock Keryx Shares shall pass, only upon delivery of such ReShape Stock Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the ReShape Stock Certificates in exchange for the Obalon Akebia Shares, as provided in Section 2.07(a1.07(a). Upon surrender of a ReShape Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or ObalonAkebia, (A) the holder of such ReShape Stock Certificate shall be entitled to receive in exchange a certificate or evidence of shares in book book-entry form representing the number of whole Obalon Akebia Shares that such holder has the right to receive pursuant to the provisions of Section 2.07(a1.07(a) (and cash in lieu of any fractional Obalon SharesAkebia Shares pursuant to Section 1.07(c)) and (B) the ReShape Stock such Certificate so surrendered shall immediately be canceled. Until surrendered as contemplated by this Section 2.09(c1.09(c), each ReShape Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Obalon Akebia Shares (and cash in lieu of any fractional Obalon SharesAkebia Shares pursuant to Section 1.09(d)) as contemplated by this Article 2 1 and any distribution or dividend with respect to Obalon Akebia Shares, the record date for which is after the Effective Time. In the event of a transfer of ownership of shares of ReShape Common Stock or ReShape Series B Preferred Stock Keryx Shares that is not registered in the transfer records of ReShapeKeryx, a certificate Certificate or evidence of shares in book-entry form representing the proper number of Obalon Akebia Shares may be issued to a Person other than the Person in whose name the ReShape Stock such Certificate so surrendered is registered if such ReShape Stock Certificate shall be is properly endorsed or otherwise be in proper form for transfer transfer, and the Person requesting such issuances shall pay pays any transfer or other Taxes required by reason of the issuance of the Obalon Akebia Shares to a Person person other than the registered holder of such shares of ReShape Common Stock or ReShape Series B Preferred Stock Keryx Shares or establish to the satisfaction of Obalon Akebia that such Taxes have been paid or are not applicable. If any ReShape Stock Certificate shall have been lost, stolen or destroyed, Obalon Akebia may, in its discretion and as a condition precedent to the issuance of any certificate or evidence of shares in book-entry form representing Obalon Akebia Shares, require the owner of such lost, stolen or destroyed ReShape Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Obalon Akebia may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Obalon, Akebia or the Surviving Corporation with respect to such ReShape Stock Certificate.
(di) As promptly as practicable following the Effective Time, Akebia shall cause the Exchange Agent to determine the excess of (A) the number of whole Akebia Shares issued and delivered to the Exchange Agent representing the Merger Consideration over (B) the aggregate number of whole Akebia Shares to be distributed to former holders of Keryx Shares pursuant to Section 1.07(a) (determined before taking into account any Akebia Shares withheld under Section 1.10) (such excess, the “Akebia Excess Shares”). Following the Effective Time, Akebia shall cause the Exchange Agent, on behalf of former Keryx Shareholders, to sell the Akebia Excess Shares at then prevailing prices on the NASDAQ Global Market (“NASDAQ”) in the manner provided in Section 1.09(d)(ii).
(ii) The sale of the Akebia Excess Shares by the Exchange Agent shall be executed on the NASDAQ through one (1) or more member firms of the NASDAQ and shall be executed in round lots to the extent practicable. The Exchange Agent shall use commercially reasonable efforts to complete the sale of the Akebia Excess Shares as promptly following the Effective Time as is practicable, consistent with obtaining the best execution of such sales in light of prevailing market conditions. Until the net proceeds of such sale or sales have been distributed to the holders of Certificates and Book-Entry Shares formerly representing Keryx Shares, the Exchange Agent shall hold such proceeds in trust for holders of Keryx Shares (the “Keryx Shares Trust”). Akebia shall pay all commissions, transfer taxes and other out-of-pocket transaction costs, including the expenses and compensation of the Exchange Agent incurred in connection with such sale of Akebia Excess Shares. The Exchange Agent shall determine the portion of the Keryx Shares Trust to which each former Keryx Shareholder is entitled, if any, by multiplying that amount of the aggregate net proceeds composing the Keryx Shares Trust by a fraction, the numerator of which is the amount of the fractional share interest to which such former Keryx Shareholder is entitled (after taking into account all Keryx Shares held as of immediately prior to the Effective Time by such holder) and the denominator of which is the aggregate amount of fractional share interests to which all former holders of Keryx Shares are entitled.
(iii) As soon as reasonably practicable after the determination of the amount of cash, if any, to be paid to holders of Certificates and Book-Entry Shares formerly representing Keryx Shares with respect to any fractional share interest, the Exchange Agent shall make available such amounts to such holders of Certificates and Book-Entry Shares, subject to and in accordance with the terms of this Section 1.09.
(e) All Akebia Shares to be issued and delivered to the Exchange Agent pursuant to this Section 1.09 shall be deemed issued and outstanding as of the Effective Time, and if a dividend or other distribution is declared by Akebia in respect of Akebia Shares, the record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all Akebia Shares issuable pursuant to this Agreement. No dividends or other distributions declared or made with respect to the Obalon Akebia Shares with a record date after the Effective Time shall be paid to the holder of an unsurrendered ReShape Stock Certificate with respect to the Obalon Akebia Shares that such holder has the right to receive pursuant to the Merger until such holder surrenders such ReShape Stock Certificate in accordance with this Section 2.091.09. All such dividends and other distributions shall be paid by Obalon Akebia to the Exchange Agent after deduction of any applicable Taxes and shall be included in the Exchange Fund, in each case until the surrender of such ReShape Stock Certificate in accordance with this Section 2.091.09. Following Subject to the effect of applicable Laws, following surrender of any such ReShape Stock Certificate Certificate, there shall be paid to the recordholder thereof, without interest, (A) at the appropriate payment datetime of such surrender, the amount of dividends or other distributions with a record date after the Effective Time but prior theretofore payable with respect to such surrender Akebia Shares and not paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to such Akebia Shares with a record date after the Effective Time but with a payment date subsequent to such surrender payable with respect to such Obalon Sharessurrender.
(ef) Any portion of the Exchange Fund that remains undistributed to holders of ReShape Stock Certificates as of the date one (1) year after the Closing Date shall be delivered to Obalon Akebia upon demand demand, and any holders of ReShape Stock Certificates who have not therefore theretofore surrendered their ReShape Stock Certificates to the Exchange Agent in accordance with this Section 2.09(e) 1.09(c), as well as any holders of Book-Entry Shares who have not theretofore cashed any check payable to them in accordance with Section 2.07(b1.09(d), shall thereafter look only to Obalon Akebia for satisfaction of their claims for Obalon Akebia Shares, cash in lieu of fractional Obalon Akebia Shares and any dividends or distributions with respect to Obalon Akebia Shares, subject to applicable abandonee abandoned property law, escheat law or similar Law.
(fg) Neither Obalon nor None of Akebia, Merger Sub or the Surviving Corporation or any of their respective Affiliates shall be liable to any current or former holder of ReShape Common Stock or ReShape Series B Preferred Stock Keryx Shareholder or to any other Person with respect to any Obalon Akebia Shares (or dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property law, escheat law or similar Law. If any ReShape Stock Certificate shall not have been surrendered prior to five (5) years after the Closing Date (or immediately prior to such earlier date on which any Obalon Akebia Shares or any dividends or other distributions payable to the holder of such ReShape Stock Certificate would otherwise escheat to or become the property of any Governmental Body), any Obalon Akebia Shares issuable upon the surrender of, or any dividends or other distributions in respect of, such ReShape Stock Certificate shall, to the extent permitted by applicable Law, become the property of ObalonAkebia, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
