Common use of Exchange of Certificates and Cash Clause in Contracts

Exchange of Certificates and Cash. (a) On or before --------------------------------- the date of Closing, Parent shall enter into an agreement, in form and substance reasonably satisfactory to the Company (acting through the Special Committee), providing for the matters set forth in this Section 3.02 and Section 2.08 (the "Paying Agent Agreement") with a bank or trust company selected by Parent (the "Paying Agent"), authorizing such Paying Agent to act as Paying Agent in connection with the Merger. Immediately prior to the Effective Time, Parent shall deposit or shall cause to be deposited with or for the account of the Paying Agent, for the benefit of the holders of shares of Company Common Stock (other than Dissenting Shares and shares to be canceled pursuant to Section 2.07(b)), an amount in cash equal to the aggregate Merger Consideration payable pursuant to Section 2.07(a) and Section 2.08 (such cash funds are hereafter referred to as the "Payment Fund"). (b) As soon as reasonably practicable after the Effective Time, Parent will instruct the Paying Agent to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time evidenced outstanding shares of Company Common Stock (other than Dissenting Shares and shares to be canceled pursuant to Section 2.07(b)) (the "Certificates"), (i) a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with a letter of transmittal, duly executed, and such other customary documents as may be required pursuant to such instructions (collectively, the "Transmittal Documents"), the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each share of Company Common Stock formerly represented by such Certificate, without any interest thereon, less any required withholding of taxes, and the Certificate so surrendered shall thereupon be canceled. In the event of a transfer of ownership of shares of Company Common Stock that is not registered in the transfer records of the Company, the Merger Consideration may be issued and paid in accordance with this Article III to the transferee of such shares if the Certificate evidencing such shares of Company Common Stock is presented to the Paying Agent and is properly endorsed or otherwise in proper form for transfer. In such event, the signature on the Certificate or any related stock power must be properly guaranteed and the person requesting payment of the Merger Consideration must either pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate so surrendered or establish to the Surviving Corporation that such tax has been paid or is not applicable. The Merger Consideration will be delivered by the Paying Agent as promptly as practicable following surrender of a Certificate and the related Transmittal Documents. Cash payments may be made by check unless otherwise required by a depositary institution in connection with the book-entry delivery of securities. No interest will be payable on such Merger Consideration. Until surrendered in accordance with this Section 3.02, each Certificate shall be deemed at any time after the Effective Time to evidence only the right to receive, upon such surrender, the Merger Consideration for each share of Company Common Stock formerly represented by such Certificate. The Payment Fund shall not be used for any purpose other than as set forth in this Article III. Any interest, dividends or other income earned on the investment of cash held in the Payment Fund shall be for the account of the Surviving Corporation. (c) Any portion of the Payment Fund (including the proceeds of any investments thereof) which remains undistributed to the holders of Company Common Stock for six months following the Effective Time shall be delivered by the Paying Agent to the Surviving Corporation, upon demand. Any holders of Company Common Stock who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration. (d) None of the Surviving Corporation, Parent, Sub, the Company or the Paying Agent shall be liable to any holder of shares of Company Common Stock for any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. (e) The Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the United States Internal Revenue Code of 1986, as amended (the "Code"), or any provision of state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Corporation or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by the Surviving Corporation or the Paying Agent. (f) In the event any Certificates evidencing shares of Company Common Stock shall have been lost, stolen or destroyed, the holder of such lost, stolen or destroyed Certificate(s) shall execute an affidavit of that fact upon request. The holder of any such lost, stolen or destroyed Certificate(s) shall also deliver a reasonable indemnity against any claim that may be made against Parent, Sub or the Paying Agent with respect to the Certificate(s) alleged to have been lost, stolen or destroyed. The affidavit and any indemnity which may be required hereunder shall be delivered to the Paying Agent, who shall be responsible for making payment for such lost, stolen or destroyed Certificates(s) pursuant to the terms hereof.

Exchange of Certificates and Cash. (a) On or before --------------------------------- the date of the Closing, Parent shall enter into an agreement, in form and substance reasonably satisfactory to the Company (acting through the Special Committee)Company, providing for the matters set forth in this Section 3.02 and Section 2.08 of this Agreement (the "“Paying Agent Agreement"”) with a bank or trust company selected by Parent (the "“Paying Agent"”), authorizing such Paying Agent to act as Paying Agent in connection with the Merger. Immediately prior to the Effective Time, Parent shall deposit or shall cause to be deposited with or for the account of the Paying Agent, for the benefit of the holders of shares of Company Common Stock Shares (other than Dissenting Shares and shares Shares to be canceled pursuant to Section 2.07(b)) of this Agreement), an amount in cash equal to the aggregate Per Share Merger Consideration payable pursuant to Section 2.07(a) and Section 2.08 of this Agreement (such cash funds are hereafter referred to as the "“Payment Fund"”). (b) As soon as reasonably practicable after the Effective Time, Parent will shall instruct the Paying Agent to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time evidenced outstanding shares of Company Common Stock Shares (other than Dissenting Shares and shares Shares to be canceled pursuant to Section 2.07(b)) of this Agreement) (the "“Certificates"”), (i) a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Per Share Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with a letter of transmittal, duly completed and properly executed, and such other customary documents as may reasonably be required pursuant to such instructions (collectively, the "“Transmittal Documents"”), the holder of such Certificate shall be entitled to receive in exchange therefor the Per Share Merger Consideration for each share of Company Common Stock Share formerly represented by such Certificate, without any interest thereon, less any required withholding of taxes, and the Certificate so surrendered shall thereupon be canceled. In the event of a transfer of ownership of shares of Company Common Stock Shares that is not registered in the stock transfer records of the Company, the Per Share Merger Consideration may be issued and paid in accordance with this Article III to the transferee of such shares if the Certificate evidencing such shares of Company Common Stock Shares is presented to the Paying Agent and is properly endorsed or otherwise in proper form for transfer. In such event, the signature on the Certificate or any related stock power must be properly guaranteed and the person requesting payment of the Per Share Merger Consideration must either pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate so surrendered or establish to the Surviving Corporation that such tax has been paid or is not applicable. The Per Share Merger Consideration will shall be delivered by the Paying Agent as promptly as practicable following surrender of a Certificate and the related Transmittal Documents. Cash payments may be made by check unless otherwise required by a depositary institution in connection with the book-entry delivery of securities. No interest will shall be payable on such Per Share Merger Consideration. Until surrendered in accordance with this Section 3.02, each Certificate shall be deemed at any time after the Effective Time to evidence only the right to receive, upon such surrender, the Per Share Merger Consideration for each share of Company Common Stock Share formerly represented by such Certificate. The Payment Fund shall not be used for any purpose other than as set forth in this Article III. Any interest, dividends or other income earned on the investment of cash held in the Payment Fund shall be for the account of the Surviving Corporation. (c) Any portion of the Payment Fund (including the proceeds of any investments thereof) which remains undistributed to the holders of Company Common Stock Shares for six months following the Effective Time shall be delivered by the Paying Agent to the Surviving Corporation, upon demand. Any holders of Company Common Stock Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation for payment of the Per Share Merger Consideration. (d) None of the Surviving Corporation, Parent, Sub, the Company Company, or the Paying Agent shall be liable to any holder of shares of Company Common Stock Shares for any cash delivered to a public official pursuant to any applicable abandoned property, escheat escheat, or similar law. (e) The Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock Shares or Options such amounts as the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the United States Internal Revenue Code of 1986, as amended (the "“Code"”), or any provision of state, local local, or foreign tax law. Any amount withheld by the Surviving Corporation or the Paying Agent shall be paid over to the appropriate Governmental Entity within the time period required by law. To the extent that amounts are so withheld by the Surviving Corporation or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock Shares in respect of which such deduction and withholding was made by the Surviving Corporation or the Paying Agent. (f) In the event any Certificates evidencing shares of Company Common Stock Shares shall have been lost, stolen or destroyed, the holder of such lost, stolen stolen, or destroyed Certificate(s) shall execute an affidavit of that fact upon request. The holder of any such lost, stolen stolen, or destroyed Certificate(s) shall also deliver a reasonable indemnity against any claim that may be made against Parent, Sub Sub, or the Paying Agent with respect to the Certificate(s) alleged to have been lost, stolen stolen, or destroyed. The affidavit and any indemnity which may be required hereunder shall be delivered to the Paying Agent, who shall be responsible for making payment for such lost, stolen stolen, or destroyed Certificates(s) pursuant to the terms hereof.

Exchange of Certificates and Cash. (a) On or before --------------------------------- the date of the Closing, Parent shall enter into an agreement, in form and substance reasonably satisfactory to the Company (acting through the Special Committee)Company, providing for the matters set forth in this Section 3.02 and Section 2.08 of this Agreement (the "Paying Agent Agreement") with a bank or trust company selected by Parent (the "Paying Agent"), authorizing such Paying Agent to act as Paying Agent in connection with the Merger. Immediately prior to the Effective Time, Parent shall deposit or shall cause to be deposited with or for the account of the Paying Agent, for the benefit of the holders of shares of Company Common Stock Shares (other than Dissenting Shares and shares Shares to be canceled pursuant to Section 2.07(b)) of this Agreement), an amount in cash equal to the aggregate Per Share Merger Consideration payable pursuant to Section 2.07(a) and Section 2.08 of this Agreement (such cash funds are hereafter referred to as the "Payment Fund"). (b) As soon as reasonably practicable after the Effective Time, Parent will shall instruct the Paying Agent to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time evidenced outstanding shares of Company Common Stock Shares (other than Dissenting Shares and shares Shares to be canceled pursuant to Section 2.07(b)) of this Agreement) (the "Certificates"), (i) a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Per Share Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with a letter of transmittal, duly completed and properly executed, and such other customary documents as may reasonably be required pursuant to such instructions (collectively, the "Transmittal Documents"), the holder of such Certificate shall be entitled to receive in exchange therefor the Per Share Merger Consideration for each share of Company Common Stock Share formerly represented by such Certificate, without any interest thereon, less any required withholding of taxes, and the Certificate so surrendered shall thereupon be canceled. In the event of a transfer of ownership of shares of Company Common Stock Shares that is not registered in the stock transfer records of the Company, the Per Share Merger Consideration may be issued and paid in accordance with this Article III to the transferee of such shares if the Certificate evidencing such shares of Company Common Stock Shares is presented to the Paying Agent and is properly endorsed or otherwise in proper form for transfer. In such event, the signature on the Certificate or any related stock power must be properly guaranteed and the person requesting payment of the Per Share Merger Consideration must either pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate so surrendered or establish to the Surviving Corporation that such tax has been paid or is not applicable. The Per Share Merger Consideration will shall be delivered by the Paying Agent as promptly as practicable following surrender of a Certificate and the related Transmittal Documents. Cash payments may be made by check unless otherwise required by a depositary institution in connection with the book-entry delivery of securities. No interest will shall be payable on such Per Share Merger Consideration. Until surrendered in accordance with this Section 3.02, each Certificate shall be deemed at any time after the Effective Time to evidence only the right to receive, upon such surrender, the Per Share Merger Consideration for each share of Company Common Stock Share formerly represented by such Certificate. The Payment Fund shall not be used for any purpose other than as set forth in this Article III. Any interest, dividends or other income earned on the investment of cash held in the Payment Fund shall be for the account of the Surviving Corporation. (c) Any portion of the Payment Fund (including the proceeds of any investments thereof) which remains undistributed to the holders of Company Common Stock Shares for six months following the Effective Time shall be delivered by the Paying Agent to the Surviving Corporation, upon demand. Any holders of Company Common Stock Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation for payment of the Per Share Merger Consideration. (d) None of the Surviving Corporation, Parent, Sub, the Company Company, or the Paying Agent shall be liable to any holder of shares of Company Common Stock Shares for any cash delivered to a public official pursuant to any applicable abandoned property, escheat escheat, or similar law. (e) The Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock Shares or Options such amounts as the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the United States Internal Revenue Code of 1986, as amended (the "Code"), or any provision of state, local local, or foreign tax law. Any amount withheld by the Surviving Corporation or the Paying Agent shall be paid over to the appropriate Governmental Entity within the time period required by law. To the extent that amounts are so withheld by the Surviving Corporation or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock Shares in respect of which such deduction and withholding was made by the Surviving Corporation or the Paying Agent. (f) In the event any Certificates evidencing shares of Company Common Stock Shares shall have been lost, stolen or destroyed, the holder of such lost, stolen stolen, or destroyed Certificate(s) shall execute an affidavit of that fact upon request. The holder of any such lost, stolen stolen, or destroyed Certificate(s) shall also deliver a reasonable indemnity against any claim that may be made against Parent, Sub Sub, or the Paying Agent with respect to the Certificate(s) alleged to have been lost, stolen stolen, or destroyed. The affidavit and any indemnity which may be required hereunder shall be delivered to the Paying Agent, who shall be responsible for making payment for such lost, stolen stolen, or destroyed Certificates(s) pursuant to the terms hereof.

Exchange of Certificates and Cash. (a) On At or before --------------------------------- the date of Closing, Parent shall enter into an agreement, in form and substance reasonably satisfactory to the Company (acting through the Special Committee), providing for the matters set forth in this Section 3.02 and Section 2.08 (the "Paying Agent Agreement") with a bank or trust company selected by Parent (the "Paying Agent"), authorizing such Paying Agent to act as Paying Agent in connection with the Merger. Immediately prior to the Effective Time, Parent shall deposit deposit, or shall cause to be deposited deposited, with or for the account of a bank or trust company designated by Parent and reasonably acceptable to the Paying Company (the "Exchange Agent"), for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II, (i) certificates evidencing the shares of Parent Common Stock (other than Dissenting Shares and shares to be canceled issuable pursuant to Section 2.07(b))2.01 in exchange for outstanding shares of Company Common Stock and (ii) upon the request of the Exchange Agent, cash in an amount in sufficient to make any cash equal to the aggregate Merger Consideration payable pursuant to payment due under Section 2.07(a2.02(d) and Section 2.08 hereof (such certificates for shares of Parent Common Stock and cash funds are being hereafter collectively referred to as the "Payment Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable instructions, deliver Parent Common Stock contemplated to be issued pursuant to Section 2.01 out of the Exchange Fund to holders of shares of Company Common Stock. Except as contemplated by Section 2.02(d) hereof, the Exchange Fund shall not be used for any other purpose. Any interest, dividends or other income earned on the investment of cash or other property held in the Exchange Fund shall be for the account of Parent. (b) As soon as reasonably practicable after the Effective Time, Parent will instruct the Paying Exchange Agent to mail to each holder of record of a certificate or certificates that that, immediately prior to the Effective Time Time, evidenced outstanding shares of Company Common Stock (other than Dissenting Shares and shares to be canceled pursuant to Section 2.07(b)) (the "Certificates"), (i) a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Exchange Agent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting to effect the surrender of the Certificates in exchange for the Merger Considerationcertificates evidencing shares of Parent Common Stock and cash, if applicable. Upon surrender of a Certificate for cancellation to the Paying Exchange Agent or to such other agent or agents as may be appointed by Parent, together with a such letter of transmittal, duly executed, and such other customary documents as may be required pursuant to such instructions (collectively, the "Transmittal Documents")instructions, the holder of such Certificate shall be entitled to receive in exchange therefor (A) a stock certificate evidencing that number of whole shares of Parent Common Stock that such holder has the Merger Consideration for each share right to receive in accordance with the Exchange Ratio in respect of the shares of Company Common Stock formerly represented evidenced by such Certificate, without any interest thereonand (B) cash in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 2.02(d) (the shares of Parent Common Stock and cash described in clauses (A) and (B) being, less any required withholding of taxescollectively, the "Merger Consideration"), and the Certificate so surrendered shall thereupon forthwith be canceled. In the event of a transfer of ownership of shares of Company Common Stock that is not registered in the transfer records of the Company, the Merger Consideration shares of Parent Common Stock may be issued and paid in accordance with this Article III II to the a transferee of such shares if the Certificate evidencing such shares of Company Common Stock is presented to the Paying Agent Exchange Agent, accompanied by all documents required to evidence and is properly endorsed or otherwise in proper form for transfer. In effect such event, the signature on the Certificate or transfer and by evidence that any related applicable stock power must be properly guaranteed and the person requesting payment of the Merger Consideration must either pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate so surrendered or establish to the Surviving Corporation that such tax has have been paid or is not applicable. The Merger Consideration will be delivered by the Paying Agent as promptly as practicable following surrender of a Certificate and the related Transmittal Documents. Cash payments may be made by check unless otherwise required by a depositary institution in connection with the book-entry delivery of securities. No interest will be payable on such Merger Considerationpaid. Until surrendered in accordance with as contemplated by this Section 3.02, each 2.02,each Certificate shall be deemed at any time after the Effective Time to evidence only the right to receive, receive the Merger Consideration upon such surrender. On or after the Effective Time, any Certificates presented to the Exchange Agent or Parent for any reason shall be converted into the Merger Consideration for each share of Company Common Stock formerly represented by such Certificate. The Payment Fund shall not be used for any purpose other than as set forth in this Article III. Any interest, dividends or other income earned on the investment of cash held in the Payment Fund shall be for the account of the Surviving CorporationConsideration. (c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock they are entitled to receive until the holder of such Certificate shall surrender such Certificate. (d) No fraction of a share of Parent Common Stock shall be issued in connection with the Merger. In lieu of any such fractional shares, each holder of Company Common Stock upon surrender of a Certificate for exchange pursuant to this Section 2.02 shall be paid an amount in cash (without interest), rounded to the nearest cent, determined by multiplying (i) the Closing Price of a share of Parent Common Stock by (ii) the fraction of a share of Parent Common Stock to which such holder would otherwise be entitled to receive under Section 2.01 of this Agreement. (e) Any portion of the Payment Exchange Fund (including the proceeds of any investments thereof) which that remains undistributed to the holders of Company Common Stock for as of that date which is six months following after the Effective Time shall be delivered by the Paying Agent to the Surviving CorporationParent, upon demand. Any , and any holders of Company Common Stock who have not theretofore complied with this Article III II shall thereafter look only to the Surviving Corporation Parent for payment of the Merger ConsiderationConsideration to which they are entitled pursuant to this Article II. (df) None of the Surviving Corporation, Parent, Sub, Parent or the Company or the Paying Agent shall be liable to any holder of of, or person otherwise entitled to receive, shares of Company Parent Common Stock for any cash such shares of Parent Common Stock (or dividends or distributions with respect thereto) from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. (eg) The Surviving Corporation Parent and the Paying Exchange Agent shall be entitled to deduct and withhold from the consideration Merger Consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as the Surviving Corporation Parent or the Paying Exchange Agent is required to deduct and withhold with respect to the making of such payment under the United States Internal Revenue Code of 1986, as amended (the "Code"), or any provision of state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Corporation Parent or the Paying Exchange Agent, (i) such withheld amounts shall be paid over to the proper authority or authorities in a reasonably commercial manner and time and (ii) such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by the Surviving Corporation Parent or the Paying Exchange Agent. (f) In the event any Certificates evidencing shares of Company Common Stock shall have been lost, stolen or destroyed, the holder of such lost, stolen or destroyed Certificate(s) shall execute an affidavit of that fact upon request. The holder of any such lost, stolen or destroyed Certificate(s) shall also deliver a reasonable indemnity against any claim that may be made against Parent, Sub or the Paying Agent with respect to the Certificate(s) alleged to have been lost, stolen or destroyed. The affidavit and any indemnity which may be required hereunder shall be delivered to the Paying Agent, who shall be responsible for making payment for such lost, stolen or destroyed Certificates(s) pursuant to the terms hereof.