Common use of Exchange of Certificates and Merger Consideration Clause in Contracts

Exchange of Certificates and Merger Consideration. (a) At or prior to the Effective Time, Parent will deposit, or cause to be deposited, with a bank or trust company designated by Parent (the “Exchange Agent”), for the benefit of the holders of Shares, the cash required to make payments in respect of the Merger consideration as required by this Article 4 (such cash, together with any dividends or distributions with respect thereto, being hereinafter referred to as the “Exchange Fund”). The Exchange Agent will, pursuant to irrevocable instructions, deliver the cash payments contemplated to be issued pursuant to Section 4.1 out of the Exchange Fund. The Exchange Fund will not be used for any other purpose. (b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of record of outstanding Shares immediately prior to the Effective Time, and whose Shares were converted into the right to receive the applicable Per Share Merger Consideration pursuant to Section 4.1, (i) a letter of transmittal (a “Letter of Transmittal”) which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon actual delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Per Share Merger Consideration for each Share evidenced thereby. Except as provided in Section 4.1(b), upon surrender of Certificates for cancellation to the Exchange Agent, together with a duly executed Letter of Transmittal and such other documents as the Exchange Agent shall reasonably require (or, if such Shares are held in book-entry or other uncertificated form, upon the entry through a book-entry transfer agent of the surrender of such Shares on a book-entry account statement), the holder of such Certificates (or uncertificated Shares, as the case may be) shall be entitled to receive the Per Share Merger Consideration for each Share formerly evidenced thereby, in accordance with Section 4.1, and the Certificates so surrendered shall be canceled. Until surrendered as provided in this Section 4.2(b), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Per Share Merger Consideration for each Share evidenced thereby. No interest will be paid or accrue on any amounts payable upon surrender of any Certificate. (c) All Merger consideration paid upon exchange of the Shares in accordance with the terms hereof will be deemed to have been paid in full satisfaction of all rights pertaining to such Shares so exchanged. (d) Any portion of the Exchange Fund that remains undistributed to the holders of Shares for six (6) months after the Effective Time will be delivered to Parent, upon demand, and any holders of Shares who have not theretofore complied with this Article 4 will thereafter look only to Parent for payments in respect of the applicable Merger consideration payable pursuant to this

Exchange of Certificates and Merger Consideration. (a) At or No later than two (2) Business Days prior to the Effective Time, Parent will deposit, or cause to be deposited, with a bank or trust company designated by Parent (the “Exchange Agent”), for the benefit of the holders of Shares, the cash required to make payments in respect of the Merger consideration as required by this Article 4 (such cash, together with any dividends or distributions with respect thereto, being hereinafter referred to as the “Exchange Fund”). The Exchange Agent will, pursuant to irrevocable instructions, deliver the cash payments contemplated to be issued pursuant to Section 4.1 and 4.4 out of the Exchange Fund. The Exchange Fund will not be used for any other purpose. (b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of record of outstanding Shares a certificate or certificates that immediately prior to the Effective TimeTime evidenced outstanding Shares (the “Certificates”), and whose Shares were converted into the right to receive the applicable Per Share Merger Consideration pursuant to Section 4.1, (i) a letter of transmittal (a “Letter of Transmittal”) which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon actual delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Per Share Merger Consideration for each Share evidenced thereby. Except as provided in Section 4.1(b), upon Upon surrender of Certificates for cancellation to the Exchange Agent, together with a duly executed Letter of Transmittal and such other documents as the Exchange Agent shall reasonably require (or, if such Shares are held in book-entry or other uncertificated form, upon the entry through a book-entry transfer agent of the surrender of such Shares on a book-entry account statement)require, the holder of such Certificates (or uncertificated Shares, as the case may be) shall be entitled to receive in exchange therefor the Per Share Merger Consideration for each Share formerly evidenced thereby, in accordance with Section 4.1, and the Certificates so surrendered shall be canceled. Until surrendered as provided in this Section 4.2(b), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Per Share Merger Consideration for each Share evidenced thereby. No interest will be paid or accrue on any amounts payable upon surrender of any Certificate. (c) All Merger consideration paid upon exchange of the Shares in accordance with the terms hereof will be deemed to have been paid in full satisfaction of all rights pertaining to such Shares so exchanged. (d) Any portion of the Exchange Fund that remains undistributed to the holders of Shares for six (6) months after the Effective Time will be delivered to Parent, upon demand, and any holders of Shares who have not theretofore complied with this Article 4 will thereafter look only to Parent for payments in respect of the applicable Merger consideration payable pursuant to thisthis Agreement. Any portion of the Exchange Fund remaining unclaimed by holders of Shares as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Entity will, to the extent permitted by applicable law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto. (e) None of Parent, Merger Sub, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Certificates (or instruments for the Company Stock-Based Securities) shall not have been surrendered prior to two (2) years after the Effective Time (or immediately prior to such earlier date on which any of the Merger consideration would otherwise escheat or become the property of any Governmental Entity), any amounts payable in respect thereof shall, to the extent permitted by law, become the property of Parent, free and clear of all claims or interest on any person previously entitled thereto. (f) Each of the Surviving Corporation and Parent will be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Corporation or Parent, as the case may be, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect of which such deduction and withholding was made by the Surviving Corporation or Parent, as the case may be. Any amounts deducted and withheld from the consideration otherwise payable pursuant to this Agreement shall be remitted by Parent or the Surviving Corporation to the appropriate Governmental Entity on a timely basis. (g) If any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger consideration payable with respect to the Shares evidenced by such Certificate.

Exchange of Certificates and Merger Consideration. (a) At or prior to the Effective Time, Parent will deposit, or cause to be deposited, with a bank or trust company designated by Parent with the prior written consent (which consent shall not be unreasonably withheld or delayed) of the Company if the Offer Termination shall have occurred (the “Exchange Agent”), for the benefit of the holders of Company Shares, the cash in immediately available funds required to make payments in respect of the Merger consideration Consideration as required by this Article 4 Section 4.1(a)(i) (such cash, together with any dividends or distributions with respect thereto, cash being hereinafter referred to as the “Exchange Fund”). The Exchange Agent willshall invest the Exchange Fund as directed by Parent; provided, pursuant that such investments shall be in obligations of or guaranteed by the United States of America or in commercial paper obligations rated “A-1” or “P-1” or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or a combination of the foregoing and, in any such case, no such instrument shall have a maturity exceeding three (3) months. To the extent there are losses with respect to irrevocable instructionssuch investments, deliver or the Exchange Fund diminishes for any other reasons below the level required to make prompt cash payments contemplated payment of the aggregate funds required to be issued paid pursuant to Section 4.1 out 4.1(a)(i), Parent shall promptly replace or restore the cash in the Exchange Fund lost through such investments or other events so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make such cash payments. Any interest and other income resulting from such investment shall become a part of the Exchange Fund. The Exchange Fund will not , and any amounts in excess of the amounts payable under Section 4.1(a)(i) shall be used for any other purposepromptly returned to Parent. (b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of record of outstanding a certificate or certificates, or evidence of Company Shares held in book-entry form, that immediately prior to the Effective TimeTime represented outstanding Company Shares (the “Certificates”), and whose Company Shares were converted into the right to receive the applicable Per Share Merger Consideration pursuant to Section 4.14.1(a)(i), (i) a letter of transmittal (a “Letter of Transmittal”) ), which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon actual delivery of the Certificates to the Exchange Agent Agent, and shall be in such form and have such other provisions as Parent may reasonably specify, specify and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Per Share Merger Consideration for each Share evidenced therebyConsideration. Except as provided in Section 4.1(b), upon Upon surrender of Certificates for cancellation to the Exchange Agent, together with a duly executed Letter of Transmittal duly executed and completed in accordance with the instructions thereto (or receipt of an “agent’s message” by the Exchange Agent in the case of a book-entry transfer) and such other documents as the Exchange Agent shall reasonably require (or, if such Shares are held in book-entry or other uncertificated form, upon the entry through a book-entry transfer agent of the surrender of such Shares on a book-entry account statement)require, the holder of such Certificates (or uncertificated Shares, as the case may be) shall be entitled to receive in exchange therefor the Per Share Merger Consideration for each Company Share formerly evidenced thereby, in accordance with Section 4.14.1(a)(i), and the Certificates so surrendered shall be canceledcancelled. Until surrendered as provided in this Section 4.2(b), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Per Share Merger Consideration for each Company Share evidenced thereby. No interest will be paid or accrue on any amounts payable upon surrender of any Certificate. (c) All Merger consideration Consideration paid upon exchange of the Company Shares in accordance with the terms hereof will be deemed to have been paid in full satisfaction of all rights pertaining to such Company Shares so exchanged. (d) Any portion of the Exchange Fund that remains undistributed to the holders of Company Shares for six (6) months after the Effective Time will be delivered to Parent, upon demand, and any holders of Company Shares who have not theretofore complied with this Article 4 will thereafter look only to Parent for payments in respect of the applicable Merger consideration Consideration payable pursuant to thisthis Agreement. (e) None of Parent, Merger Sub, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any Person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates shall not have been surrendered immediately prior to the date on which any of the Merger Consideration would otherwise escheat or become the property of any Governmental Entity, any amounts payable in respect thereof shall, to the extent permitted by Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto. (f) Each of the Surviving Corporation, Parent and Merger Sub will be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement (including any payments made pursuant to the Offer and the Merger, any payments made in respect of the Dissenting Shares and any payments made in respect of Company Stock Options) to any holder of Company Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under 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 Merger Sub, as the case may be, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the Company Shares in respect of which such deduction and withholding was made by the Surviving Corporation, Parent or Merger Sub, as the case may be. Any amounts deducted and withheld from the consideration otherwise payable pursuant to this Agreement shall be remitted by Parent, Merger Sub or the Surviving Corporation to the appropriate Governmental Entity on a timely basis. (g) If any cash payment is to be made pursuant to Section 4.1(a)(i) in a name other than that in which the Certificate surrendered in exchange therefor is registered, it will be a condition of such payment that (i) the Person requesting such payment shall pay any transfer or other similar Taxes required by reason of the making of such payment in a name other than that of the registered holder of the Certificate surrendered, or required for any other reason relating to such holder or requesting Person, or shall establish to the reasonable satisfaction of the Exchange Agent that such Tax has been paid or is inapplicable and (ii) the Certificate so surrendered will be properly endorsed or will be otherwise in proper form for transfer. (h) If any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond, in customary amount and upon such terms as may be required by the Surviving Corporation, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable with respect to the Company Shares evidenced by such Certificate pursuant to this Agreement.

Exchange of Certificates and Merger Consideration. (a) At or No later than two (2) Business Days prior to the Effective Time, Parent will deposit, or cause to be deposited, with a bank or trust company designated by Parent (the “Exchange Agent”), for the benefit of the holders of Shares, Company Stock Options, Company SOSARs and Company Warrants, the cash required to make payments in respect of the Merger consideration as required by this Article 4 (such cash, together with any dividends or distributions with respect thereto, being hereinafter referred to as the “Exchange Fund”). The Exchange Agent will, pursuant to irrevocable instructions, deliver the cash payments contemplated to be issued pursuant to Section 4.1 and 4.4 out of the Exchange Fund. The Exchange Fund will not be used for any other purpose. (b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of record of outstanding Shares a certificate or certificates that immediately prior to the Effective TimeTime evidenced outstanding Shares (the “Certificates”), and whose Shares shares were converted into the right to receive the applicable Per Share Merger Consideration Offer Price pursuant to Section 4.1, (i) a letter of transmittal (a “Letter of Transmittal”) which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon actual delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Per Share Merger Consideration for each Share evidenced therebyOffer Price. Except as provided in Section 4.1(b), upon Upon surrender of Certificates for cancellation to the Exchange Agent, together with a duly executed Letter of Transmittal and such other documents as the Exchange Agent shall reasonably require (or, if such Shares are held in book-entry or other uncertificated form, upon the entry through a book-entry transfer agent of the surrender of such Shares on a book-entry account statement)require, the holder of such Certificates (or uncertificated Shares, as the case may be) shall be entitled to receive in exchange therefor the Per Share Merger Consideration Offer Price for each Share formerly evidenced thereby, in accordance with Section 4.14.1(a), and the Certificates so surrendered shall be canceled. Until surrendered as provided in this Section 4.2(b), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Per Share Merger Consideration Offer Price for each Share evidenced thereby. No interest will be paid or accrue on any amounts payable upon surrender of any Certificate. (c) All Merger consideration paid upon exchange of the Shares in accordance with the terms hereof will be deemed to have been paid in full satisfaction of all rights pertaining to such Shares so exchanged. (d) Any portion of the Exchange Fund that remains undistributed to the holders of Shares for six (6) months after the Effective Time will be delivered to Parent, upon demand, and any holders of Shares who have not theretofore complied with this Article 4 will thereafter look only to Parent for payments in respect of the applicable Merger consideration payable pursuant to thisthis Agreement. Any portion of the Exchange Fund remaining unclaimed by holders of Shares as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Government Entity will, to the extent permitted by applicable law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto. (e) None of Parent, Merger Sub, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Certificates shall not have been surrendered prior to two years after the Effective Time (or immediately prior to such earlier date on which any of the Merger consideration would otherwise escheat or become the property of any Governmental Entity), any amounts payable in respect thereof shall, to the extent permitted by law, become the property of Parent, free and clear of all claims or interest on any person previously entitled thereto. (f) Each of the Surviving Corporation and Parent will be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Corporation or Parent, as the case may be, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect of which such deduction and withholding was made by the Surviving Corporation or Parent, as the case may be. Any amounts deducted and withheld from the consideration otherwise payable pursuant to this Agreement shall be remitted by Parent or the Surviving Corporation to the appropriate Governmental Entity on a timely basis. (g) If any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger consideration payable with respect to the Shares evidenced by such Certificate. (h) Any portion of the Exchange Fund made available to the Exchange Agent pursuant to Section 4.2(a) to pay for Shares for which appraisal rights have been perfected shall be returned to the Surviving Corporation, upon demand.