Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration. (b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts. (c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Precision Castparts Corp), Merger Agreement (SPS Technologies Inc)
Exchange of Certificates. (a) Parent shall authorize one Prior to or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly promptly after the Effective Time, Parent shall cause the Exchange Agent ensure that a letter of transmittal in customary form (a "Letter of Transmittal") has been mailed to mail, to former each record holders holder of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after Capital Stock immediately prior to the Effective Time, Parent shall deliver to together with instructions for use in effecting the Exchange Agent sufficient Parent Shares and cash to satisfy exchange of certificates representing such Company Capital Stock for the Merger ConsiderationConsideration payable with respect to such Company Capital Stock. After the Effective Time, upon receipt Upon surrender to Parent of Certificates for cancellationa certificate representing shares of Company Capital Stock (or an affidavit of lost stock certificate as described below), together with a properly completed letter duly executed Letter of transmittal (which shall specify that delivery shall be effected, Transmittal and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and such other requested documents and in accordance with the instructions thereonas Parent may reasonably request, the holder of such Certificates certificate shall be entitled to receive in exchange therefor (i) a cash in the amount equal to the Merger Consideration, if any, which such holder has the right to receive pursuant to Section 1.5, and the certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall forthwith be canceled. From and after the Effective Time, each certificate which prior to the Effective Time represented shares of Company Capital Stock shall be deemed to represent only the right to receive the Merger Consideration, if any, payable with respect to such shares as contemplated by Section 1.5, and, if applicable, the Post-Closing Payments, if any, payable in accordance with Section 1.8, and the holder of each such certificate shall cease to have been any rights with respect to the shares of Company Capital Stock formerly represented thereby. If payment of Merger Consideration in respect of shares of Company Capital Stock converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are is to be issued in made to a name Person other than that the Person in which the Certificate whose name a surrendered certificate for shares of Company Capital Stock is registered, it shall be a condition of to such exchange payment that the certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such payment shall have paid any transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares such payment in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish shall have established to the satisfaction of the Exchange Agent Parent that such tax either has been paid or is not applicablepayable. Beginning As of the Effective Time, the stock transfer books of the Company shall be closed and there shall not be any further registration of transfers of shares of Company Capital Stock thereafter on the date records of the Company. If, after the Effective Time, certificates for shares of Company Capital Stock are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration, if any, payable with respect to such shares as provided for in Section 1.5. No interest shall accrue or be paid on any Merger Consideration payable upon the surrender of a certificate or certificates which is twelve months following immediately before the Closing DateEffective Time represented outstanding shares of Company Capital Stock. In the event any certificate representing shares of Company Capital Stock converted in connection with the Merger pursuant to Section 1.5 shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed and, if requested by Parent, the posting by such person of a bond in such amount, form and with such surety as Parent may direct as indemnity against any claim that may be made against it with respect to such certificate, Parent shall act as cause to be paid in exchange for such lost, stolen or destroyed certificate the Exchange Agent and thereafter applicable Merger Consideration, if any, payable with respect such shares. Notwithstanding anything in this Agreement to the contrary, Parent shall not be liable to any holder of an unsurrendered Certificate shall look solely to Parent shares of Company Capital Stock for any amounts amount paid to which such holder may be due, subject a public official pursuant to applicable lawabandoned property laws. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration Any amounts remaining unclaimed five by holders of shares of Company Capital Stock three years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, to or become property of, of any Governmental EntityBody) shall, to the extent permitted by lawapplicable Legal Requirements, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoEncumbrance.
Appears in 2 contracts
Samples: Merger Agreement (Siebel Systems Inc), Merger Agreement (Siebel Systems Inc)
Exchange of Certificates. (a) Upon the Effective Time, a bank or trust company to be designated by the Parent (the "Payment Agent") shall authorize one or more Persons reasonably acceptable act as payment agent in effecting the exchange, for the Merger Consideration multiplied by the number of Shares formerly represented thereby, of certificates (the "Certificates") that, prior to the Company Effective Time, represented Shares entitled to act payment pursuant to Section 2.5(a)(i). Upon the Effective Time, the Parent shall, or shall 16 cause the Purchaser to, deposit with the Payment Agent in trust for the benefit of the holders of Certificates, as Exchange needed to pay for surrendered Shares as provided in this Section 2.6, within such time as is necessary for the Payment Agent hereunder to make the requisite payments for Shares, immediately available funds in an aggregate amount (the “Exchange Agent”"Payment Fund") equal to the product of the Merger Consideration multiplied by the number of Shares entitled to payment pursuant to Section 2.5(a)(i). Promptly after the Effective Time, the Parent or the Purchaser shall cause to be mailed to each record holder of Certificates that immediately prior to the Exchange Agent to mail, to former record holders Effective Time represented Shares a form of Company Shares who have not previously submitted letters letter of transmittal together with Certificates, and instructions for use in surrendering their such Certificates in exchange for and receiving the Merger Consideration.
(b) Promptly after Consideration therefor. Upon the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt surrender of Certificates for cancellation, each such Certificate together with a properly duly completed and executed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title totransmittal, the Certificates Payment Agent shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, promptly pay the holder of such Certificates shall be entitled to receive Certificate the Merger Consideration multiplied by the number of Shares formerly represented by such Certificate, without any interest thereon, in exchange therefor therefor, and such Certificate shall forthwith be cancelled. Until so surrendered and exchanged, each such Certificate (i) a certificate other than Certificates representing that number of whole shares of Parent Common Stock into which Shares held by the Parent, the Purchaser or the Company Shares theretofore represented by or any direct or indirect subsidiary of the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (iiParent, the Purchaser or the Company or Dissenting Shares) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only solely the right to receive the Merger Consideration andmultiplied by the number of Shares represented by such Certificate, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Timewithout any interest thereon. If any certificates representing Parent Shares are cash is to be issued in paid to a name person other than that the holder in which whose name the Certificate representing Shares surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that the Person person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and payment shall pay to the Exchange Payment Agent any transfer or other taxes required by reason of the issuance payment of such cash to a certificate representing Parent Shares in a name person other than that of the registered holder of the Certificate surrendered, or such person shall establish to the satisfaction of the Exchange Payment Agent that such tax has been paid or is not applicable. Beginning on Notwithstanding the foregoing, neither the Payment Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(b) To the extent not immediately required for payment for surrendered Shares as provided in Section 2.6(a), the Payment Fund shall be invested by the Payment Agent, as directed by the Parent (so long as such directions do not impair the rights of holders of Shares or the ability of the Payment Agent to timely pay the Merger Consideration), in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, commercial paper rated of the highest quality by Moodx'x Xxxestors Services, Inc. or Standard & Poor's Corporation, or certificates of deposit issued by a commercial bank having at least $300,000,000 in assets (a "Qualified Commercial Bank"); and any net earnings with respect thereto shall be paid to the Parent as and when requested by the Parent.
(c) The Payment Agent shall, pursuant to irrevocable instructions, make the payments referred to in Section 2.5(a)(i) out of the Payment Fund. Promptly following the date which that is twelve six months following after the Closing Datedate of the Effective Time, the Payment Agent shall deliver to the Parent all cash, certificates and other documents in its possession relating to the transactions described in this Agreement, and the Payment Agent's duties shall act as the Exchange Agent and thereafter any terminate. Thereafter, each holder of an unsurrendered a Certificate shall look solely formerly representing a Share may surrender such Certificate to the Surviving Corporation or the Parent for any amounts to which such holder may be due, and (subject to applicable law. Notwithstanding abandoned property, escheat and similar laws) receive in exchange therefor the Merger Consideration, without any other provisions of this Agreementinterest thereon, any portion but shall have no greater rights against the Surviving Corporation or the Parent than may be accorded to general creditors of the Merger Consideration remaining unclaimed five years after Surviving Corporation or the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by Parent under applicable law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Lumen Technologies Inc), Merger Agreement (Eg&g Inc)
Exchange of Certificates. (a) Prior to the Closing Date, Parent shall authorize one select a reputable bank or more Persons trust company reasonably acceptable to the Company to act as Exchange Agent hereunder exchange agent in the Merger (the “Exchange Agent”). Promptly Within five (5) business days after the Effective Time, Parent shall cause deposit with the Exchange Agent to mailAgent, to former record for the benefit of the holders of Company Shares who have not previously submitted letters Shares, (i) certificates representing the shares of transmittal Parent Common Stock issuable pursuant to this Section 1, and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c) (such cash and shares of Parent Common Stock, together with Certificatesany dividends or distributions with respect thereto, instructions for surrendering their Certificates in exchange for being referred to as the Merger Consideration“Exchange Fund”).
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash will mail to satisfy the Merger Consideration. After the Effective Time, upon receipt record holders of Company Stock Certificates for cancellation, together with (i) a properly completed letter of transmittal in customary form and containing such provisions as Parent and the Company may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected, and risk of loss of, and title to, the to Company Stock Certificates shall pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration. Upon surrender of a Company Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other requested documents and in accordance with as may be reasonably required by the instructions thereonExchange Agent or Parent, (A) the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor therefore the Merger Consideration, and (iB) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall have been converted pursuant to be immediately canceled. Until surrendered as contemplated by this Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest 1.7, each Company Stock Certificate shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with deemed, from and after the provisions of this Section 1.8Effective Time, each Certificate shall to represent for all purposes only the right to receive the Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into and any distribution or dividend the record date for which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at is after the Effective Time. If any certificates Company Stock Certificate shall have been lost, stolen or destroyed, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificates the Merger Consideration; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares are Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be issued in made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock with a name other than that in which record date after the Certificate surrendered is registered, it Effective Time shall be a condition paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock that such exchange holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7.
(d) Any portion of the Exchange Fund that remains undistributed to holders of Company Stock Certificates as of the Person requesting such exchange deliver date one (1) year after the Effective Time shall be delivered to Parent upon demand, and any holders of Company Stock Certificates who have not theretofore surrendered their Company Stock Certificates to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent accordance with this Section 1.7 shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely only to Parent for any amounts satisfaction of their claims for the Merger Consideration to which such holder is entitled pursuant hereto.
(e) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be duerequired to be deducted or withheld therefrom under the Code or any provision of state, subject to applicable law. Notwithstanding local or foreign tax law or under any other provisions of applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement, any portion of Agreement as having been paid to the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior Person to such time as whom such amounts would otherwise escheat tohave been paid.
(f) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), or become for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims escheat law or interest of any person previously entitled theretosimilar Legal Requirement.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Rainbow Technologies Inc), Merger Agreement (Safenet Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent the Surviving Corporation shall cause the Exchange Agent to mailbe mailed to each Person who was, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after at the Effective Time, Parent shall deliver a holder of record of Shares entitled to receive the Exchange Agent sufficient Parent Shares and cash Per Share Merger Consideration pursuant to satisfy the Merger Consideration. After the Effective Time, upon receipt Section 1.07(a) a form of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent) and other requested documents instructions for use in effecting the surrender of the Certificates pursuant to such letter of transmittal. Upon surrender to the Paying Agent of a Certificate, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereonthereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which therefore the Company Shares theretofore represented Per Share Merger Consideration for each Share formerly evidenced by the Certificates so surrendered such Certificate, and such Certificate shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5then be canceled. No interest shall accrue or be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Per Share Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in payable upon the Merger at surrender of any Certificate for the Effective Time shall be deemed to have been issued at benefit of the Effective Timeholder of such Certificate. If any certificates representing Parent Shares are the payment equal to the Per Share Merger Consideration is to be issued in made to a name Person other than that the Person in which whose name the surrendered Certificate surrendered is registeredregistered on the stock transfer books of the Company, it shall be a condition of such exchange payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such exchange deliver to the Exchange Agent payment shall have paid all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance payment of the Per Share Merger Consideration to a certificate representing Parent Shares in a name Person other than that of the registered holder of the Certificate surrendered, or establish shall have established to the satisfaction of the Exchange Agent TAS that such tax has taxes either have been paid or is are not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter If any holder of an unsurrendered Certificate shall look solely Shares is unable to Parent for any amounts to which surrender such holder’s Certificates because such Certificates have been lost, stolen, mutilated or destroyed, such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, deliver in lieu thereof an affidavit and indemnity bond in form and substance and with surety reasonably satisfactory to the extent permitted by law, become Surviving Corporation. Comparable procedures shall be established to disburse the property of Parent free Option Consideration and clear of any claims or interest of any person previously entitled theretothe Purchase Right Consideration.
Appears in 2 contracts
Samples: Merger Agreement (Harber Lacy J), Merger Agreement (Timco Aviation Services Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective TimeDate, upon receipt each holder of Certificates an outstanding certificate representing shares of Sierra-California Common Stock may be asked to surrender the same for cancellationcancellation to Boston EquiServe, together with a properly completed letter of transmittal L.P. (which shall specify that delivery shall be effectedthe "Exchange Agent"), and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent the Surviving Corporation's Common Stock Stock, as the case may be, into which the Company Shares surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore represented by representing shares of Sierra-California Common Stock shall be deemed for all purposes to represent the Certificates so surrendered number of shares of the Surviving Corporation's Common Stock, respectively, into which such shares of Sierra-California Common Stock, as the case may be, were converted in the Merger. The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 the Surviving Corporation or the Exchange Agent, have and (ii) a check in the amount of be entitled to exercise any cash due pursuant voting and other rights with respect to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right and to receive Merger Consideration and, if applicable, amounts under Section 1.12dividends and other distributions upon the shares of Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Parent Shares into which Company Shares shall be converted Each certificate representing Common Stock of the Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Timerestrictions on transferability as the certificates of Sierra-California so converted and given in exchange therefore, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws. If any certificates representing Parent Shares are certificate for shares of the Surviving Corporation's stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 2 contracts
Samples: Merger Agreement (Sierra Semiconductor Corp), Merger Agreement (Sierra Semiconductor Corp)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable After the Effective Date of the Merger, each holder of an outstanding certificate representing PASW, Inc. California Common Stock may, at such holder’s option, surrender the same for cancellation to the Company to act Corporate Stock Transfer, as Exchange Agent hereunder exchange agent (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of shares of the Surviving Corporation’s Common Stock into which the surrendered shares were converted as provided herein. Until so surrendered, each outstanding certificate theretofore representing shares of PASW, Inc. California capital stock shall be deemed for all purposes to represent the number of whole shares of Parent Common Stock the appropriate class and series of the Surviving Corporation’s capital stock into which such shares of PASW, Inc. California capital stock were converted in the Company Shares theretofore represented by Merger. The registered owner on the Certificates so surrendered books and records of the Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 the Surviving Corporation or the Exchange Agent, have and (ii) a check in the amount of be entitled to exercise any cash due pursuant voting and other rights with respect to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right and to receive Merger Consideration and, if applicable, amounts under Section 1.12dividends and other distributions upon the shares of capital stock of the Surviving Corporation represented by such outstanding certificate as provided above. Parent Shares into which Company Shares shall be converted Each certificate representing capital stock of the Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Timerestrictions on transferability as the certificates of PASW, Inc. California so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws. If any certificates representing Parent Shares are certificate for shares of Surviving Corporation’s stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 2 contracts
Samples: Merger Agreement (Pasw Inc), Merger Agreement (Pasw Inc)
Exchange of Certificates. (a) Prior to the Effective Time, Parent shall authorize one designate a bank or more Persons trust company reasonably acceptable to the Company MGI to act as Exchange Agent hereunder paying agent in the Merger (the “Exchange "Paying Agent”"). Promptly , and, from time to time on, prior to or after the Effective Time, Parent shall make available, or cause the Exchange Agent Surviving Corporation to mailmake available, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates the Paying Agent funds in exchange amounts and at the times necessary for the payment of the Merger ConsiderationConsideration upon surrender of certificates representing MGI Shares (it being understood that any and all interest earned on funds made available to the Paying Agent pursuant to this Agreement shall be turned over to Parent).
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent the Paying Agent shall deliver mail to each holder of record of a certificate or certificates which immediately prior to the Exchange Agent sufficient Parent Effective Time represented MGI Shares and cash to satisfy (the Merger Consideration. After the Effective Time"Certificates"), upon receipt of Certificates for cancellation, together with (i) a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon delivery of the Certificates to the Exchange AgentPaying Agent and shall be in a 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 Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other requested agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executed, and such other documents and in accordance with as may reasonably be required by the instructions thereonPaying Agent, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock the Merger Consideration into which the Company MGI Shares theretofore represented by the Certificates so surrendered such Certificate shall have been converted pursuant to Section 1.5 2.05, and (ii) the Certificate so surrendered shall forthwith be canceled. In the event of a check transfer of ownership of MGI Shares that is not registered in the amount transfer records of any cash due pursuant MGI, payment may be made to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name person other than that the person in which whose name the Certificate so surrendered is registered, it if such Certificate shall be a condition of such exchange that properly endorsed or otherwise be in proper form for transfer and the Person person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of payment to a certificate representing Parent Shares in a name person other than that of the registered holder of the such Certificate surrendered, or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing DateUntil surrendered as contemplated by this Section 2.07, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered each Certificate shall look solely to Parent for be deemed at any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration, without interest, into which the MGI Shares theretofore represented by such Certificate shall have been converted pursuant to Section 2.05. No interest will be paid or will accrue on the Merger Consideration payable upon the surrender of any Certificate.
(or c) All Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the MGI Shares theretofore represented by such earlier date Certificates. At the Effective Time, the stock transfer books of MGI shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the MGI Shares that were outstanding immediately prior to such time as such amounts would otherwise escheat tothe Effective Time. If, or become property ofafter the Effective Time, any Governmental Entity) shall, Certificates are presented to the extent permitted by Surviving Corporation or the Paying Agent for any reason, they shall be canceled and exchanged as provided in this Article II.
(d) At any time following six months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) which had been made available to the Paying Agent and which have not been disbursed to holders of Certificates, and thereafter such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of a Certificate for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Family Golf Centers Inc), Merger Agreement (Metrogolf Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable Prior to the Company Effective Time, Purchaser ------------------------ shall designate a bank or trust company to act as Exchange Agent hereunder agent (the “Exchange "Paying Agent”") for the holders of Shares and Preferred Shares to receive the funds necessary to effect the exchange for cash of certificates which, immediately prior to the Effective Time, represented Shares or Preferred Shares entitled to payment pursuant to Section 2.5(a) or 2.5(b). Promptly As soon as practicable after the Effective Time, Parent the Paying Agent shall cause mail a transmittal form (the Exchange Agent "Letter of Transmittal") to mail, to former each holder of record holders of Company certificates theretofore representing such Shares who have not previously submitted letters or Preferred Shares advising such holder of transmittal together with Certificates, instructions the procedure for surrendering their Certificates in exchange to the Paying Agent such certificates. If a check for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are is to be issued in the name of a name person other than that the person in which whose name the Certificate certificates for Shares or Preferred Shares surrendered is registeredfor exchange are registered on the books of the Company, it shall be a condition of such the exchange that the Person person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Paying Agent any all transfer or other taxes required by reason of the issuance of such check in the name of a certificate representing Parent Shares in a name person other than that the registered owner of the registered holder of the Certificate certificates surrendered, or shall establish to the satisfaction of the Exchange Paying Agent that such tax has taxes have been paid or is are not applicable. Beginning on Notwithstanding the date which is twelve months following foregoing, neither the Closing Date, Parent Paying Agent nor any party hereto shall act as the Exchange Agent and thereafter any be liable to a holder of an unsurrendered Certificate shall look solely to Parent certificates theretofore representing Shares or Preferred Shares for any amounts amount paid to a public official pursuant to any applicable abandoned property, escheat or similar laws. Upon the surrender and exchange of a certificate theretofore representing Shares or Preferred Shares, the holder shall be paid by check, without interest thereon, the Merger Consideration to which he or she is entitled hereunder, less only such amount required to be withheld under applicable backup withholding federal income tax regulations, and such certificate shall forthwith be cancelled. The Company shall take all steps necessary and appropriate to promptly effect the conversion of the Preferred Shares upon surrender by the holders thereof to the Company for conversion. Until so surrendered and exchanged, each such certificate shall represent solely the right to receive the Merger Consideration into which the Shares or Preferred Shares it theretofore represented shall have been converted pursuant to Sections 2.5(a) and (b), without interest, and the Surviving Corporation shall not be required to pay the holder thereof the Merger Consideration to which such holder may otherwise would be due, subject entitled; provided that -------- customary and appropriate certifications and indemnities allowing for payment against lost or destroyed certificates shall be permitted. If any certificates representing any Shares or Preferred Shares shall not have been surrendered prior to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts earlier date on which any payment in respect thereof would otherwise escheat to, to or become the property ofof any governmental unit or agency), any Governmental Entity) the payment in respect of such certificates shall, to the extent permitted by applicable law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any person previously entitled theretothereto .
Appears in 2 contracts
Samples: Merger Agreement (BHP Sub Inc), Merger Agreement (Magma Copper Co)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly From and after the Effective Time, Parent all Company Common Stock shall cause the Exchange Agent no longer be outstanding and shall automatically be cancelled and retired and shall cease to mailexist, to former record holders and each holder of a certificate representing shares of Company Shares who Common Stock shall cease to have not previously submitted letters of transmittal together any rights with Certificatesrespect thereto, instructions for surrendering their Certificates except the right to receive in exchange therefor, upon surrender thereof to ChaseMellon Shareholder Services (the "Exchange Agent"), a certificate or certificates representing the number of whole shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.1 and cash payment for any fractional shares referred to in Section 3.4. Notwithstanding any other provision of this Agreement, (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock have surrendered them for exchange as provided herein, no dividends shall be paid with respect to any Parent Common Stock shares represented by such certificates and no payment for fractional shares shall be made and (ii) without regard to when such certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid on any Parent Common Stock dividends or any payment for fractional shares. Upon surrender of a certificate which immediately prior to the Merger ConsiderationEffective Time represented shares of Company Common Stock, there shall be paid to the holder of such certificate the amount of any dividends which theretofore became payable, but which were not paid by reason of the foregoing, with respect to the number of whole shares of Parent Common Stock represented by the certificate or certificates issued upon such surrender.
(b) If any certificate for shares of Parent Common Stock is to be issued in a name other than that in which the certificate for shares of Company Common Stock surrendered in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and the person requesting such exchange shall have paid to Parent or its transfer agent any applicable transfer or other taxes required by reason of such issuance.
(c) Promptly after the Effective Time, Parent shall deliver make available to the Exchange Agent sufficient the certificates representing shares of Parent Shares Common Stock required to effect the exchanges referred to in paragraph (a) above and cash for payment of any fractional shares referred to satisfy the Merger Consideration. After in Section 3.4.
(d) Promptly after the Effective Time, upon receipt the Exchange Agent shall mail to each holder of Certificates for cancellation, together with record of a properly completed certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the "Company Certificates") (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Company Certificates shall pass, only upon actual delivery of the Company Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other requested documents and in accordance with as the instructions thereonExchange Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the shares of Company Shares Common Stock theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to the provisions of Section 1.5 3.1, and (ii) the Company Certificates so surrendered shall be cancelled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a check in the amount holder of shares of Company Common Stock for any cash due shares of Parent Common Stock or dividends or distributions thereon delivered to a public official pursuant to Section 1.5. No interest shall be paid applicable abandoned property, escheat or shall accrue on any such amountssimilar laws.
(ce) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on Promptly following the date which is twelve nine (9) months following after the Closing DateEffective Time, Parent shall act as the Exchange Agent shall deliver to Parent all certificates (including certificates representing shares of any Parent Common Stock), property and thereafter any other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of an unsurrendered a Company Certificate shall look solely may surrender such Company Certificate to Parent for any amounts and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor the number of shares of Parent Common Stock to which such person is entitled, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Subsidiary or the Surviving Corporation shall be liable to a holder of Company Common Stock for any Parent Common Stock delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(f) In the event any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Company Certificate to be lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Parent Common Stock deliverable in respect thereof determined in accordance with this Section 3.3. When authorizing such payment in exchange therefor, the Board of Directors of Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Certificate to give Parent such indemnity as it may reasonably direct as protection against any claim that may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of made against Parent or the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, Surviving Corporation with respect to the extent permitted by lawCompany Certificate alleged to have been lost, become the property of Parent free and clear of any claims stolen or interest of any person previously entitled theretodestroyed.
Appears in 2 contracts
Samples: Merger Agreement (Corporate Express Inc), Merger Agreement (Corporate Express Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable Prior to the Company Effective Time, Purchaser shall designate a bank or trust company with capital exceeding $500 million to act as Exchange Agent hereunder agent (the “Exchange "Paying Agent”") for the Shareholders to receive the funds necessary to effect the exchange for cash of certificates which, immediately prior to the Effective Time, represented Common Stock entitled to payment pursuant to Section 2.1(b). Promptly As soon as practicable after the Effective Time, Parent the Paying Agent shall cause mail a transmittal form to each holder of record of certificates theretofore representing such Common Stock advising such holder of the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions procedure for surrendering their Certificates in exchange to the Paying Agent such certificates. If a check or wire transfer for the Merger Consideration.
Per Share Amount is to be issued in the name of any individual, partnership, corporation, trust, association, limited liability company, Governmental Agency or any other entity (beach, a "Person") Promptly after other than the Effective TimePerson in whose name the certificates for Common Stock surrendered for exchange are registered on the books of the Company, Parent it shall deliver be a condition of the exchange that the Person requesting such exchange shall pay to the Exchange Paying Agent sufficient Parent Shares all transfer or other taxes, if any, required by reason of the issuance of such check or wire transfer in the name of a Person other than the registered owner of the certificates surrendered, or shall establish to the satisfaction of the Paying Agent that such taxes have been paid or are not applicable. Upon the surrender and cash to satisfy exchange of a certificate theretofore representing Common Stock, the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery holder shall be effectedpaid by check or wire transfer, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions without interest thereon, the Per Share Amount to which such holder of is entitled hereunder, less only such Certificates amount, if any, required to be withheld under applicable backup withholding federal income tax regulations, and such certificate shall forthwith be entitled cancelled. Until so surrendered and exchanged, each such certificate shall represent solely the right to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock the Per Share Amount into which the Company Shares Common Stock it theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 2.1, without interest, and (ii) a check in the amount of any cash due pursuant Surviving Corporation shall not be required to Section 1.5. No interest shall pay the holder thereof the Per Share Amount to which such holder otherwise would be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Timeentitled. If any certificates representing Parent Shares are any Common Stock shall not have been surrendered prior to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts earlier date on which any payment in respect thereof would otherwise escheat to, to or become the property of, of any Governmental Entity) Agency), the payment in respect of such certificates shall, to the extent permitted by applicable law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any person Person previously entitled thereto. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to a holder of certificates theretofore representing Common Stock for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar laws. In the event that any holder is unable to deliver the certificate which formerly represented such holder's Common Stock, then Parent or Purchaser, in the absence of actual notice that any Common Stock represented by any such certificate has been acquired by a bona fide purchaser, shall deliver to such holder the Per Share Amount to which Shareholder is entitled in accordance with the provisions of this Agreement upon the presentation of the following: (i) an affidavit or other evidence that the certificate has been lost, wrongfully taken or destroyed; (ii) evidence that such Person is the beneficial owner of the certificate claimed by such Person to be lost, wrongfully taken or destroyed and that such Person is the person who would be entitled to present such certificate for exchange pursuant to this Agreement and (iii) reasonable indemnity against the claims of any third party claiming to be the beneficial owner of such lost, wrongfully taken or destroyed certificate.
Appears in 2 contracts
Samples: Merger Agreement (Software Spectrum Inc), Merger Agreement (Level 3 Communications Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable Prior to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent ACT shall cause appoint The Bank of New York or another exchange agent mutually acceptable to ACT and ICH to act as exchange agent (the "Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates Agent") in exchange for the Merger ConsiderationMerger.
(b) Promptly after At or prior to the Effective Time, Parent ACT shall deliver provide to the Exchange Agent Agent, for the benefit of the holders of shares of ICH Stock, certificates representing ACT Common Shares issuable in exchange for certificates representing outstanding shares of ICH Stock pursuant to Section 2.1 ("Certificates") and an estimated amount in cash sufficient Parent Shares and cash to satisfy the Merger Consideration. After ACT's obligations under Section 2.5.
(c) As soon as reasonably practicable after the Effective TimeTime and in no event later than ten business days thereafter, upon receipt the Exchange Agent shall mail to each holder of Certificates for cancellation, together with record of shares of ICH Stock whose shares were converted into ACT Common Shares pursuant to Section 2.1 (i) a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon delivery of the Certificates to the Exchange AgentAgent and shall be in a form and have such other provisions as ACT may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates evidencing ACT Common Shares. Upon surrender of a Certificate for cancellation to the Exchange Agent or to such other requested agent or agents as may be appointed by ACT, together with such letter of transmittal, duly executed, and such other documents and in accordance with as may reasonably be required by the instructions thereonExchange Agent, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that the number of whole shares of Parent ACT Common Stock into Shares to which the Company Shares theretofore represented by holder is entitled and an amount of cash in lieu of any fractional ACT Common Share in accordance with Section 2.5, and the Certificates Certificate so surrendered shall have been converted pursuant to Section 1.5 and (ii) forthwith be canceled. In the event of a check transfer of ownership of shares of ICH Stock that is not registered in the amount transfer records of any cash due pursuant ICH, payment may be made to Section 1.5. No interest a Person (as defined below) other than the Person in whose name the Certificate so surrendered is registered if such Certificate shall be paid properly endorsed or shall accrue on any such amounts.
(c) Until surrendered otherwise be in accordance with the provisions of this Section 1.8, each Certificate shall represent proper form for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that transfer and the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and payment either shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of such payment being made to a certificate representing Parent Shares in a name Person other than that of the registered holder of the such Certificate surrendered, or establish to the satisfaction of ACT that such tax or taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.2, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender such whole number of ACT Common Shares provided by Section 2.1 and an amount in cash in lieu of any fractional ACT Common Share in accordance with Section 2.5. No interest will be paid or will accrue on the consideration payable upon the surrender of any Certificate or on any cash payable pursuant to Section 2.4 or Section 2.5.
(d) All ACT Common Shares delivered, and cash in lieu of any fractional shares thereof paid, upon the surrender of Certificates in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to such shares. There shall be no further registration of transfers on the stock transfer books of ICH or its transfer agent of the shares of ICH Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Entity for any reason, they shall be canceled and exchanged as provided in this Article II.
(e) None of ICH, ACT or the Exchange Agent that such tax has been paid shall be liable to any Person in respect of any shares or is not applicablefunds delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. Beginning on the date which is twelve months following the Closing Date, Parent shall act as All Certificates and funds held by the Exchange Agent for payment to the holders of unsurrendered Certificates that remain unclaimed for six months after the Effective Time shall be redelivered by the Exchange Agent to ACT, upon demand, and any holders of Certificates who have not theretofore complied with Section 2.2(c) shall thereafter look only to the Surviving Entity for delivery of any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be dueshares or funds, subject to applicable law. Notwithstanding any escheat and other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretosimilar laws.
Appears in 2 contracts
Samples: Merger Agreement (Impac Commercial Holdings Inc), Merger Agreement (Amresco Capital Trust)
Exchange of Certificates. (a) As of the Effective Time, Parent shall authorize one deposit with Parent’s transfer agent, Xxxxxxxx Stock Transfer, or more Persons reasonably acceptable to a nationally reputable bank or trust company in the Company to act United States as Exchange Agent hereunder may be designated by Parent (the “"Exchange Agent”"). Promptly , for the benefit of the holders of shares of Company Common Stock and for exchange in accordance with this Section 2.4, the Merger Consideration assumable pursuant to Section 2.1.
(b) As soon as reasonably practicable after the Effective Time, and in no event later than ten (10) business days thereafter, Parent shall cause the Exchange Agent shall mail to mail, each holder of record of a certificate (or certificates) which immediately prior to former record holders the Effective Time represented outstanding shares of Company Shares who have not previously submitted letters of transmittal together with Common Stock, as the case may be (the "Company Stock Certificates"), instructions for surrendering their Certificates in exchange for the Merger Consideration.
(bi) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates Company Stock Certificate(s) shall pass, only upon delivery of the Certificates Company Stock Certificate(s) (or affidavits of loss in lieu of such certificates) (the "Letter of Transmittal”) to the Exchange AgentAgent and shall be in such form and have such other provisions as Parent or the Exchange Agent reasonably may specify, together with a substitute Form W-9) and other requested documents and (ii) instructions for use thereof in accordance surrendering Company Stock Certificate(s) in exchange for the Merger Consideration. Upon surrender to the Exchange Agent of a Company Stock Certificate in proper form for cancellation, together with the instructions thereona duly executed letter of transmittal, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) therefore a certificate (or certificates) representing that such whole number of whole shares of Parent Common Stock into which such Company shareholder is entitled to receive pursuant to Section 2.1 in such denominations and registered in such names as such holder may request, and Exchange Agent shall mail such certificate (or certificates) to such holder in accordance with the Company Shares theretofore Letter of Transmittal. The shares represented by the Certificates Company Stock Certificate so surrendered shall have been converted pursuant to Section 1.5 forthwith be cancelled. Without limiting the generality of the foregoing (and (ii) a check in the amount notwithstanding any other provisions of any cash due pursuant to Section 1.5. No this Agreement), no interest shall be paid or accrued in respect of any of the Merger Consideration. The Letter of Transmittal shall accrue provide (i) procedures for holders whose Company Stock Certificates are lost, stolen or destroyed to receive the Merger Consideration and (ii) procedures for the transfer of ownership of shares of the Company Common Stock that is not registered on any the stock transfer books and records of the Company. Until surrendered in accordance with this Section 2.4 and as specified in the Letter of Transmittal, each Company Stock Certificate shall be deemed at all times from and after the Effective Time to represent only the right to receive upon such amountssurrender the Merger Consideration as provided in this Article II.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared or made after the Effective Time in respect of shares of Parent Common Stock having a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate until the holder shall surrender such Company Stock Certificate as provided in this Section 2.3. Subject to applicable law, following surrender of any such Company Stock Certificate, there shall be paid to the holder of the certificates representing shares of Parent Common Stock issued in exchange therefore, in each case without any interest thereon, (i) at the time of such surrender, the amount of dividends or other distributions, if any, having a record date after the Effective Time theretofore payable with respect to such shares of Parent Common Stock and not paid, less the amount of all required withholding Taxes in respect thereof, and (ii) at the appropriate payment date subsequent to surrender, the amount of dividends or other distributions having a record date after the Effective Time but prior to the date of such surrender and having a payment date subsequent to the date of such surrender and payable with respect to such shares of Parent Common Stock, less the amount of all required withholding Taxes in respect thereof.
(d) All shares of Parent Common Stock issued upon surrender of Company Stock Certificates in accordance with this Article II and as specified in the Letter of Transmittal shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such shares of Company Common Stock represented thereby and, as of the Effective Time, the stock transfer books and records of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books and records of the Company of shares of Company Common Stock outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Stock Certificates are properly presented to the Surviving Corporation for any reason (but otherwise in accordance with this Article II and as specified in the Letter of Transmittal), they shall be cancelled and exchanged as provided in this Section 2.3.
(e) At any time following the twelve-month anniversary of the Effective Time, Parent shall be entitled to require the Exchange Agent to deliver to it any remaining portion of the Merger Consideration remaining unclaimed five years after not theretofore distributed to former holders of shares of Company Common Stock (including any interest, if any, received with respect thereto and other income resulting from investments thereof by the Effective Time Exchange Agent, as directed by Parent), and such former holders shall be entitled to look only to the Parent (subject to abandoned property, escheat and other similar laws) with respect to the Merger Consideration and dividends or other distributions with respect to Parent Common Stock, if any, payable upon due surrender of their Company Stock Certificates, in all cases without any interest thereon and less all required withholding Taxes. Notwithstanding the foregoing, neither the Parent nor the Exchange Agent shall be liable to any holder of a Company Stock Certificate for Merger Consideration (or such earlier date immediately prior dividends or distributions in respect thereof) delivered to such time as such amounts would otherwise a public official pursuant to any applicable abandoned property, escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by similar law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Whos Your Daddy Inc), Merger Agreement (Snocone Systems Inc)
Exchange of Certificates. (a) Prior to the Effective Time, Parent shall authorize one designate a bank or more Persons trust company reasonably acceptable to the Company to act as Exchange Agent hereunder paying agent (the “Exchange "Paying Agent”). Promptly after ") in effecting the exchange for the Purchase Price of certificates (the "Certificates") that, prior to the Effective Time, Parent shall cause represented Shares. Upon the Exchange Agent to mail, to former record holders surrender of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationeach such Certificate formerly representing Shares, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title totransmittal, the Certificates Paying Agent shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, pay the holder of such Certificate the Purchase Price multiplied by the number of Shares formerly represented by each such Certificate, in exchange therefor, and each such Certificate shall forthwith be cancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or Shares held by Parent, Purchaser or the Company, or any direct or indirect subsidiary thereof, or in the treasury of the Company) shall be entitled represent solely the right to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5Purchase Price. No interest shall be paid or shall accrue on the Purchase Price. If the Purchase Price (or any such amounts.
(cportion thereof) Until is to be delivered to any person other than the person in whose name the Certificate formerly representing Shares surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered exchange therefor is registered, it shall be a condition of to such exchange that the Person Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required by reason of the issuance payment of the Purchase Price to a certificate representing Parent Shares in a name person other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not applicable.
(b) Prior to the Effective Time, Parent or Purchaser shall deposit, or cause to be deposited, in trust with the Paying Agent the Purchase Price to which holders of Shares shall be entitled at the Effective Time pursuant to Section 2.07 hereof; provided, however, that no such deposit shall relieve Parent or Purchaser of its obligation to pay the Purchase Price pursuant to Section 2.07.
(c) The Purchase Price shall be invested by the Paying Agent as directed by Parent, provided that such investments shall be limited to direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, commercial paper rated of the highest quality by Xxxxx'x Investors Services, Inc. or Standard & Poor's Corporation, or certificates of deposit issued by a commercial bank having at least $1,000,000,000 in assets; provided further that no loss on investment made pursuant to this Section 3.02(c) shall relieve Parent or Purchaser of its obligation to pay the Purchase Price pursuant to Section 2.07.
(d) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of Certificates that immediately prior to the Effective Time represented Shares a form of letter of transmittal and instructions for use in surrendering such Certificates and receiving the Purchase Price in exchange therefor.
(e) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. Beginning on If, after the Effective Time, Certificates formerly representing Shares are presented to the Surviving Corporation or the Paying Agent, they shall be cancelled and exchanged for the Purchase Price as provided in this Article III, subject to applicable law in the case of Dissenting Shares.
(f) Promptly following the date which is twelve six months following after the Closing DateEffective Time, the Paying Agent shall deliver to Parent all cash and documents in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall act as the Exchange Agent and thereafter any terminate. Thereafter, each holder of an unsurrendered a Certificate shall look solely formerly representing a Share may surrender such Certificate to Parent for any amounts to which such holder may be due, the Surviving Corporation and (subject to applicable law. Notwithstanding abandoned property, escheat and similar laws) receive in exchange therefor the Purchase Price, without any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretothereon.
Appears in 2 contracts
Samples: Merger Agreement (Metromail Corp), Merger Agreement (Great Universal Acquisition Corp)
Exchange of Certificates. (a) As promptly as practicable after the Effective Time (but in any event within thirty (30) days following the Effective Time), Parent shall authorize one cause the shares of Parent Preferred A Stock issuable pursuant to Section 1.5(a)(i) to be issued in certificated or more Persons reasonably acceptable book-entry form at Parent’s election.
(b) Prior to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause will mail or otherwise provide to the Exchange Agent to mail, to former Persons who were record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, Capital Stock immediately prior to the Effective Time instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for book-entry or certificated shares representing Parent Common Stock; provided, however, that, at the Merger Consideration.
(b) Promptly after Company’s discretion, such instructions may be provided to record holders of Company Capital Stock by the Company prior to the Effective Time, . Upon surrender of a Company Stock Certificate to Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed letter of transmittal such other documents as may be reasonably required by Parent: (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange AgentA) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate therefor, book-entry or certificated shares representing that the number of whole shares of Parent Common Series A Preferred Stock into which that such holder has the right to receive pursuant to the provisions of Section 1.5(a)(i); and (B) the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Series A Preferred Stock pursuant to the provisions of Section 1.5(a)(i). If any Company Stock Certificate shall have been converted pursuant lost, stolen or destroyed, Parent may, in its discretion and as a condition to Section 1.5 and (ii) a check in the amount issuance of any cash due pursuant book-entry or certificated shares representing Series A Preferred Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to Section 1.5. No interest shall be paid or shall accrue on any provide an appropriate lost affidavit with respect to such amountsCompany Stock Certificate.
(c) Until surrendered in accordance No dividends or other distributions declared or made with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right respect to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at Series A Preferred Stock with a record date after the Effective Time shall be deemed paid or otherwise delivered to have been issued the holder of any unsurrendered Company Stock Certificate with respect to the shares of Series A Preferred Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it time such holder shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be dueentitled, subject to the effect of applicable law. Notwithstanding abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Each of Parent 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 may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or non-U.S. Tax law or under any other provisions of applicable Legal Requirement. To the extent such amounts are so deducted or withheld and paid to or deposited with the appropriate Governmental Body, such amounts shall be treated for all purposes under this Agreement, any portion of Agreement as having been paid to the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior Person to such time as whom such amounts would otherwise escheat tohave been paid. Parent shall take commercially reasonable efforts to reduce or eliminate any required withholding.
(e) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock or to any other Person with respect to any shares of Series A Preferred Stock (or dividends or distributions with respect thereto), or become for any cash amounts, delivered to any public official pursuant to any applicable abandoned property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims escheat law or interest of any person previously entitled theretoother similar Legal Requirement.
Appears in 2 contracts
Samples: Merger Agreement (iHookup Social, Inc.), Merger Agreement (iHookup Social, Inc.)
Exchange of Certificates. (a) Parent shall authorize one At or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after promptly following the Effective Time, Parent Buyer shall deposit, or cause to be deposited with the Exchange Agent for the benefit of holders of shares of Company Common Stock and Company OP Units, cash and certificates representing shares of Class B Stock or cash, Notes and certificates representing the shares of Class B Stock, as the case may be, constituting the Merger Consideration. For purposes of this Section 1.5, holders of Company OP Units shall be treated in the same manner as holders of shares of Company Common Stock, except as provided in the last sentence of Section 1.5(b) hereof.
(b) As of or promptly after, and in any event not later than five business days following, the Effective Time, the Surviving Entity shall cause the Exchange Agent to mailmail (and to make available for collection by hand) to each holder of record of a certificate or certificates, which immediately prior to former record holders the Effective Time represented outstanding shares of Company Shares who have not previously submitted letters of transmittal together with Common Stock (the "Certificates"), instructions for surrendering their Certificates in exchange for the Merger Consideration.
(bi) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange AgentAgent and which shall be in the form and have such other provisions as Buyer and the Company may reasonably specify) and other requested documents (ii) instructions for use in effecting the surrender of the Certificates in exchange for (A) a certificate or certificates representing the number of full shares of Class B Stock and Notes, if any, into which all or a portion of the number of shares of Company Common Stock previously represented by such Certificate have been converted pursuant to this Agreement and (B) the amount of cash, if any, into which all or a portion of the number of shares of Company Common Stock previously represented by such Certificate shall have been converted pursuant to this Agreement (which instructions shall provide that at the election of the surrendering holder, Certificates may be surrendered, and the Merger Consideration in exchange therefor collected, by hand delivery). Upon surrender of a Certificate for cancellation to the Exchange Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereonthereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number the Merger Consideration for each share of whole shares of Parent Company Common Stock into which the Company Shares theretofore formerly represented by such Certificate, to be mailed (or made available for collection by hand if so elected by the surrendering holder) within three business days of receipt thereof (or, in the case of any holders that surrender Certificates with a Form of Election prior to the calculation of the Cash Proration Factor and the Non-Cash Proration Factor, three business days after such calculation), and the Certificate so surrendered shall have been converted pursuant be forthwith cancelled. The Exchange Agent shall accept such Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to Section 1.5 and (ii) a check effect an orderly exchange thereof in the amount of any cash due pursuant to Section 1.5accordance with normal exchange practices. No interest shall be paid or accrued for the benefit of holders of the Certificates on the Merger Consideration payable upon the surrender of the Certificates, or for the Merger Consideration deliverable to the holder of Company OP Units pursuant to the following sentence, except for interest accruing on the Notes in accordance with their terms. Immediately following delivery to the Exchange Agent of the Merger Consideration contemplated by Section 1.5(a) hereof, the Exchange Agent shall accrue on any such amounts.cause to be delivered to the holders of Company OP Units the Merger Consideration that they are entitled in accordance with this Article I.
(c) Until surrendered No dividends or other distributions with respect to shares of Class B Stock or interest with respect to the Notes, as the case may be, with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Class B Stock and Notes represented thereby or to the holder of any Company OP Units by reason of the conversion of shares of Company Common Stock and Company OP Units pursuant to Sections 1.2(a), 1.3 and 1.4 hereof and no cash payment in lieu of fractional shares or Fractional Notes shall be paid to any such holder pursuant to Section 1.5(d) hereof until the surrender of such Certificate in accordance with this Article I or the delivery of the Merger Consideration to the holders of Company OP Units pursuant to the last sentence of Section 1.5(b). Subject to the effect of applicable laws, following surrender of any such Certificate or concurrently with such delivery, there shall be paid to the Person in whose name the shares of Class B Stock and Notes are registered (i) at the time of such surrender or delivery or as promptly after the sale of the Excess Shares or Excess Notes (as defined in Section 1.5(d) hereof) as practicable, the amount of any cash payable in lieu of fractional shares of Class B Stock or Fractional Notes to which such holder is entitled pursuant to Section 1.5(d) hereof and the amount of dividends or other distributions or interest with a record date after the Effective Time theretofore paid with respect to such Class B Stock or Notes issued upon conversion of Company Common Stock and Company OP Units, and (ii) at the appropriate payment date, the amount of dividends or other distributions or interest with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such Class B Stock or Notes.
(d) Notwithstanding any other provision of this Agreement, no fraction of a share of Class B Stock or of a Note shall be issued in connection with the Merger, and such fractional interest shall not entitle the owner thereof to vote or to any rights as a security holder of Reckson. In lieu of any such fractional security, each holder of shares of Company Common Stock and Company OP Units otherwise entitled to a fraction of a share of Class B Stock or of a Note will be entitled to receive in accordance with the provisions of this Section 1.81.5 from the Exchange Agent, each Certificate a cash payment representing such holder's proportionate interest in the net proceeds from the sale by the Exchange Agent on behalf of all such holders of the aggregate of the fractions of Class B Stock or Notes, as the case may be, which would otherwise be issued (respectively, the "Excess Shares" and the "Excess Notes"). The sale of the Excess Shares by the Exchange Agent shall represent 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 sale of the Excess Notes by the Exchange Agent shall be executed in the over-the-counter market. Until the net proceeds of such sale or sales have been distributed to the holders of shares of Company Common Stock and Company OP Units, the Exchange Agent will, subject to Section 1.5(e) hereof, hold such proceeds in trust for the holders of shares of Company Common Stock and Company OP Units. Buyer shall pay all purposes only commissions, transfer taxes and other out-of-pocket transaction costs, including the right expenses and compensation of the Exchange Agent incurred in connection with such sale of the Excess Shares. As soon as practicable after the determination of the amount of cash, if any, to receive be paid to holders of shares of Company Common Stock and Company OP Units in lieu of any fractional Class B Stock or Fractional Notes, the Exchange Agent shall make available such amounts to such holders of shares of Company Common Stock and Company OP Units.
(e) Any portion of the Merger Consideration and, if applicable, amounts under deposited with the Exchange Agent pursuant to this Section 1.12. Parent Shares into 1.5 (the "Exchange Fund") which Company Shares shall be converted in remains undistributed to the Merger at holders of the Certificates for one year after the Effective Time shall be deemed delivered to Buyer, upon demand, and any holders of shares of Company Common Stock prior to the Merger who have been issued at not theretofore complied with this Article I shall (to the Effective Timeextent permitted by applicable law) thereafter look only to Buyer and only as general creditors thereof for payment of their claim for (i) cash, if any, (ii) shares of Class B Stock, if any, (iii) Notes, if any, (iv) any cash in lieu of fractional shares of Class B Stock and Fractional Notes and (v) any dividends or distributions with respect to shares of Class B Stock or interest with respect to Notes to which such holders may be entitled.
(f) None of Buyer, Reckson, the Company or the Exchange Agent shall be liable to any Person in respect of shares of Class B Stock, Notes or cash from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing Parent Shares are Certificates shall not have been surrendered prior to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years one year after the Effective Time (or such earlier date immediately prior to such time as earlier date on which (i) any cash, (ii) any cash in lieu of fractional shares of Class B Stock or Fractional Notes, (iii) any shares of Class B Stock or Notes or (iv) any dividends or distributions with respect to shares of Class B Stock or interest with respect to Notes in respect of which such amounts Certificate would otherwise escheat to, to or become the property ofof any Governmental Entity (as defined in Section 3.3(b) hereof)), any Governmental Entity) such shares of Class B Stock, Notes, cash, dividends or distributions or interest in respect of such Certificate shall, to the extent permitted by applicable law, become the property of Parent Buyer, free and clear of any all claims or interest of any person Person previously entitled thereto.
(g) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by Buyer on a daily basis. Any interest and other income resulting from such investments shall be paid to Buyer. Nothing contained in this Section 1.5(g) shall relieve Buyer, Reckson or the Exchange Agent from making the payments required by this Article I to be made to the holders of shares of Company Common Stock and to holders of Company Stock Options.
Appears in 2 contracts
Samples: Merger Agreement (Reckson Associates Realty Corp), Merger Agreement (Tower Realty Trust Inc)
Exchange of Certificates. (a) Parent shall authorize one At or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly soon as practicable after the Effective Time, Parent shall cause Bank of New Yorkor its designee (the Exchange Agent "Disbursement Agent") will send to mail, to former record the holders of Company Shares who have not previously submitted letters Stock Certificates: (i) a letter of transmittal together with Certificates, in customary form and containing such provisions as Parent may reasonably specify and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver . Upon surrender of a Company Stock Certificate to the Exchange Disbursement Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk of loss of, and title to, reasonably required by Parent or the Certificates shall pass, only upon delivery of the Certificates to the Exchange Disbursement Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate representing portion of the Merger Consideration that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only holder has the right to receive Merger Consideration andpursuant to the provisions of Section 1.5 above, if applicable, amounts under Section 1.12. Parent Shares into which and the Company Shares Stock Certificate so surrendered shall be converted in canceled. No interest will be paid or accrued on the Merger at cash payable upon the Effective Time shall be deemed to have been issued at surrender of the Effective TimeCompany Stock Certificates. If any certificates representing Parent Shares are payment is to be issued in made to a name person other than that the person in which whose name the Company Stock Certificate surrendered is registered, it shall be a condition of such exchange payment that the Person Company Stock Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and payment pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of payment to a certificate representing Parent Shares in a name person other than that of the registered holder of the Company Stock Certificate surrendered, surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing DateUntil surrendered as contemplated by this Section 1.8, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered each Company Stock Certificate shall look solely be deemed, from and after the Effective Time, to Parent for any amounts represent only the right to which receive upon such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any surrender the portion of the Merger Consideration remaining unclaimed five years after as contemplated by this Section 1. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery of the Merger Consideration applicable to such certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate. As of the Effective Time Time, Parent shall deposit with the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) the total amount of the Merger Consideration (such amount, being hereinafter referred to as the "Disbursement Fund"). The Disbursement Fund shall be distributed pursuant to an agreement by and among Parent and the Disbursement Agent in a form reasonably satisfactory to the Company (the "Disbursement Agent Agreement") which shall be designed with the intent of effecting the provisions of this Agreement.
(b) Parent and the Surviving Corporation (or the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) on their behalf) shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to this Agreement such amounts as Parent or the Surviving Corporation reasonably determine are required to be deducted or withheld therefrom under the Internal Revenue Code (the "Code") or under any provision of state, local or foreign tax law (or, in the alternative, Parent or the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent), at Parent's option, may request tax information and other documentation establishing that no withholding is necessary). To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) Any portion of the Disbursement Fund held by the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) pursuant to this Section 1.8 which remains undistributed to the Shareholders of the Company at the earlier date of (i) immediately prior to such time as on which any of such amounts portion would otherwise escheat to, or become the property ofof any governmental unit or agency, any Governmental Entityand (ii) shallthirteen (13) months after the Effective Time, shall to the extent permitted by law, applicable law be delivered to Surviving Corporation and become the property thereof, and any Shareholders of the Company who have not theretofore complied with this Section 1.8 shall thereafter look only to Surviving Corporation, and only as general creditors thereof, for payment of their claim for the Merger Consideration to which such Shareholders may be entitled. Notwithstanding the foregoing, neither Parent free and clear nor the Surviving Corporation shall be liable to any holder or former holder of capital stock of the Company for any claims cash amounts, delivered to any public official pursuant to any applicable abandoned property, escheat or interest of any person previously entitled theretosimilar law.
Appears in 2 contracts
Samples: Merger Agreement (Interwest Home Medical Inc), Merger Agreement (Interwest Home Medical Inc)
Exchange of Certificates. (a) Parent shall authorize one From and after the Effective Time, a bank or more Persons trust company to be designated by Acquisition Corp. and reasonably acceptable to the Company to (the "PAYING AGENT") shall act as Exchange Agent hereunder (paying agent in effecting the “Exchange Agent”). Promptly after exchange for the Merger Consideration of certificates that, prior to the Effective Time, Parent shall cause represented Public Shares entitled to payment pursuant to Section 1.03. Upon the Exchange surrender of each such certificate and the delivery by the Paying Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates the Merger Consideration in exchange for therefore, the Merger Consideration.
(b) Promptly after certificates that, prior to the Effective Time, Parent represented outstanding Public Shares shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Considerationforthwith be canceled. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates Until so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8exchanged, each Certificate such certificate shall represent for all purposes only solely the right to receive the Merger Consideration andmultiplied by the number of Public Shares represented by such certificate. Upon the surrender and exchange of such outstanding certificate, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares the holder shall be converted in receive the Merger at the Effective Time shall be deemed to have been issued at the Effective TimeConsideration, without any interest thereon. If any certificates representing Parent Shares are cash is to be issued in paid to a name person other than that a person in which the Certificate whose name such surrendered certificate is registered, it shall be a condition of to such payment or exchange that the Person person requesting such payment or exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Paying Agent any transfer or other taxes required by reason of the issuance payment of a certificate representing Parent Shares in such cash to a name other than that of the registered holder of the Certificate surrenderedsuch surrendered certificate, or such person shall establish to the satisfaction of the Exchange Paying Agent that such tax has been paid or is not applicable. Beginning on Notwithstanding the foregoing, neither the Paying Agent nor any party to any such exchange shall be liable to a holder of Public Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property laws.
(b) At or prior to the Effective Time, Acquisition Corp. shall provide the Paying Agent with sufficient cash to pay the Merger Consideration to each holder of Public Shares entitled thereto.
(c) Promptly following the date which is twelve six months following after the Closing DateEffective Time, Parent the Paying Agent shall act as return to the Exchange Agent Surviving Corporation all cash (together with all interest earned thereon) and thereafter any other instruments in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall terminate. Thereafter, each holder of an unsurrendered Certificate a certificate that immediately prior to the Effective Time represented Public Shares may surrender such certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefore the Merger Consideration, without interest, but shall look solely to Parent for any amounts to which such holder have no greater rights against the Surviving Corporation than may be dueaccorded to general creditors of the Surviving Corporation under Delaware law.
(d) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of certificates that immediately prior to the Effective Time represented (a) Public Shares a form of letter of transmittal and instructions for use in surrendering such certificates and receiving the Merger Consideration therefore, and (b) Continuing Shares a form of letter of transmittal and instructions for use in surrendering such certificates and receiving new certificates for Acquisition Corp. Shares.
(e) After the Effective Time, there shall be no transfers on the stock transfer books of the Company or the Surviving Corporation of any Public Shares. If, after the Effective Time, certificates that immediately prior to the Effective Time represented Public Shares are presented to the Surviving Corporation or the Paying Agent, they shall be canceled and exchanged for the Merger Consideration, as provided in Section 1.03 hereof, subject to applicable law. Notwithstanding any other provisions law in the case of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoDissenting Shares.
Appears in 2 contracts
Samples: Merger Agreement (Royal Precision Inc), Merger Agreement (Royal Precision Inc)
Exchange of Certificates. (a) On the Closing Date, to the extent that the Company shall have delivered a written request to Parent and the relevant Company Stock Certificates have been surrendered for cancellation to Parent no later than five (5) business days prior to the Closing Date and Parent has received a letter of transmittal from the relevant holder of Company Capital Stock in customary form and containing such customary provisions (as reasonably agreed to by Parent and Company within 10 days after the date of this Agreement), Parent shall authorize one or more Persons reasonably acceptable deliver certificates representing shares of Parent Common Stock to each such holder of record of a Company Stock Certificate that immediately prior to the Effective Time represented outstanding shares of Company Capital Stock whose shares were converted into the right to act as Exchange Agent hereunder (the “Exchange Agent”receive shares of Parent Common Stock pursuant to Section 1.5(c). Promptly As soon as reasonably practicable after the Effective Time, Parent shall will send (or cause to be sent) to the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (other than record holders of transmittal together with Certificates, instructions for surrendering their Company Stock Certificates in exchange for the Merger Consideration.
as to which certificates representing Parent Common Stock are delivered at Closing) (bi) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal in customary form and containing such customary provisions as Parent or its transfer agent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected, and risk of loss of, and title to, the to Company Stock Certificates shall pass, only upon delivery of the such Company Stock Certificates to Parent), and (ii) instructions for use in effecting the Exchange Agent) surrender of Company Stock Certificates in exchange for the Merger Consideration. Upon surrender of a Company Stock Certificate to Parent or its transfer agent for exchange, together with a duly executed letter of transmittal and such other requested documents and in accordance with the instructions thereonas may be reasonably required by Parent, Parent shall cause to be delivered to the holder of such Certificates shall be entitled to receive in exchange therefor (i) Company Stock Certificate a certificate representing that number of whole shares of Parent Common Stock into which that such holder has the right to receive pursuant to Section 1.5(c) rounded up to the nearest whole number. All Company Shares theretofore represented by the Stock Certificates so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.9, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive the Merger Consideration in accordance with this Agreement. If any Company Stock Certificate shall have been converted pursuant lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to Section 1.5 and (ii) a check in the amount issuance of any certificate representing Parent Common Stock or the payment of cash due pursuant in lieu of fractional shares, require the owner of such lost, stolen or destroyed Company Stock Certificate to Section 1.5. provide an appropriate affidavit and indemnity and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity to Parent against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(b) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional share shall accrue on be paid to any such amountsholder, until such holder surrenders such Company Stock Certificate or an appropriate affidavit and bond with respect to any lost, stolen or destroyed Company Stock Certificate, in each case in accordance with this Section 1.9 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Until surrendered Each of Parent 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 Parent and the Surviving Corporation are required to deduct or withhold therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent Parent or the Surviving Corporation is deducting and withholding any such consideration based on any Legal Requirement other than any Legal Requirement under the Code, Parent or the Surviving Corporation, as applicable, shall use its commercially reasonable efforts to notify the Company of the amounts required to be withheld and the Legal Requirement that imposes such withholding obligation at least ten (10) days prior to the date when the applicable withholding shall be made, and in accordance with any event shall provide such notification when such withholding is made. To the provisions of this Section 1.8extent such amounts are so deducted or withheld, each Certificate such amounts shall represent be treated for all purposes only under this Agreement as having been paid to the right Person to receive Merger Consideration and, if applicable, whom such amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to would otherwise have been issued at the Effective Time. If any certificates paid.
(d) Each certificate representing shares of Parent Shares are Common Stock to be issued in accordance with this Agreement shall bear a name other than that legend substantially in which the Certificate surrendered is registeredfollowing form: “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, it SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH SHARES ARE REGISTERED UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO PARENT IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED”.
(e) Neither Parent nor the Surviving Corporation shall be a condition liable to any holder or former holder of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason capital stock of the issuance Company or to any other Person for any shares of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrenderedCommon Stock (or dividends or distributions with respect thereto), or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts cash amounts, delivered to which such holder may be due, subject any public official pursuant to any applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become abandoned property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims escheat law or interest of any person previously entitled theretosimilar Legal Requirement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (RHL Group, Inc.), Agreement and Plan of Merger and Reorganization (Favrille Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons As soon as reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly practicable after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Shares who have not previously submitted letters of transmittal together with CertificatesCommon Stock or Company Preferred Stock shall, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver upon surrender to the Exchange Agent sufficient Parent Shares of such certificate(s) and cash to satisfy acceptance thereof by the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, Exchange Agent (together with a properly completed the letter of transmittal (which shall specify that delivery shall be effecteddescribed in Section 2.2(b), duly executed, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to such other documents as may reasonably be required by the Exchange Agent) and other requested documents and in accordance with the instructions thereon), the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number the amount of whole shares of Parent Common Stock the Merger Consideration into which the number of shares of Company Shares theretofore Common Stock or Company Preferred Stock previously represented by the Certificates such certificate(s) so surrendered shall have been converted pursuant to Section 1.5 this Agreement. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock and (ii) a check in the amount of any cash due Company Preferred Stock which have been converted pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only Agreement into the right to receive the Merger Consideration, and if such certificates are presented for transfer, they shall be cancelled against delivery of the Merger Consideration. If the Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are is to be issued in a name delivered to any Person other than that the Person in which whose name the Certificate certificate(s) representing shares of Company Common Stock or Company Preferred Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate(s) so surrendered shall be properly endorsed with the signature guaranteed or otherwise in proper form for transfer, and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance payment of the Merger Consideration to a certificate representing Parent Shares in a name Person other than that of the registered holder of the Certificate surrenderedthereof, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on Until surrendered as contemplated by this Section 2.2(a), each certificate which, prior to the date which is twelve months following the Closing DateEffective Time, Parent represented outstanding shares of Company Common Stock or Company Preferred Stock (other than shares cancelled pursuant to Section 1.8(b) and Dissenting Shares) shall act as the Exchange Agent and thereafter be deemed at any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years time after the Effective Time (to represent only the right to receive upon such surrender the Merger Consideration in accordance with Section 1.8. No interest will be paid or such earlier date immediately prior will accrue on any cash payable as Merger Consideration to such time as such amounts would otherwise escheat to, any holder of shares of Company Common Stock or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoCompany Preferred Stock.
Appears in 2 contracts
Samples: Merger Agreement (Jack Miller Family Limited Partnership 1), Merger Agreement (Successories Inc)
Exchange of Certificates. (a) Prior to the Effective Time, Parent shall authorize one appoint The Bank of New York or more Persons another bank or trust company that is reasonably acceptable satisfactory to the Company to act as Exchange Agent hereunder paying agent (the “Paying Agent”) for the payment of the Merger Consideration. At the Effective Time, Parent shall deposit, or cause the Surviving Corporation to deposit, with the Paying Agent, for the benefit of the holders of Certificates, cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid pursuant to Section 2.01(c) (the “Exchange AgentFund”). Promptly .
(b) As soon as reasonably practicable after the Effective Time, Parent shall cause the Exchange Paying Agent to mail, mail to former each holder of record holders of a Certificate whose shares of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for Common Stock were converted into the right to receive the Merger Consideration.
Consideration (bi) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt a form of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange AgentPaying Agent and which shall be in customary form and contain customary provisions) and other requested documents and (ii) instructions for use in accordance with effecting the instructions thereon, surrender of the Certificates in exchange for the Merger Consideration. Each holder of record of one or more Certificates shall, upon surrender to the Paying Agent of such Certificates shall Certificate or Certificates, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Paying Agent, be entitled to receive in exchange therefor (i) a certificate representing that number the Merger Consideration for each share of whole shares of Parent Company Common Stock into which the Company Shares theretofore formerly represented by such Certificate or Certificates, and the Certificates so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of the Company, payment of the Merger Consideration in accordance with this Section 2.04(b) may be made to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other Taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of such Certificate or establish to the reasonable satisfaction of Parent that such Taxes have been converted pursuant paid or are not applicable. Until surrendered as contemplated by this Section 2.04(b), each Certificate shall be deemed at any time after the Effective Time to Section 1.5 and (ii) a check in represent only the amount of any cash due pursuant right to Section 1.5receive upon such surrender the Merger Consideration. No interest shall be paid or shall accrue accrued for the benefit of holders of the Certificates on any such amountsthe Merger Consideration payable in respect of the Certificates.
(c) Until surrendered The Merger Consideration paid upon the surrender of Certificates in accordance with the provisions terms of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time Article II shall be deemed to have been issued at paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificates. At the close of business on the day on which the Effective Time occurs, the share transfer books of the Company shall be closed, and there shall be no further registration of transfers on the share transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If If, after the Effective Time, any certificates representing Parent Shares are Certificate is presented to be issued in a name other than that in which the Certificate surrendered is registeredSurviving Corporation for transfer, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion canceled against delivery of the Merger Consideration remaining unclaimed five as provided in this Article II.
(d) Any portion of the Exchange Fund that remains undistributed to the holders of the Certificates for six months after the Effective Time shall be delivered to Parent, upon demand, and any holders of the Certificates who have not theretofore complied with this Article II shall thereafter look only to Parent for, and Parent shall remain liable for, payment of their claim for the Merger Consideration in accordance with this Article II.
(e) None of Parent, Merger Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any person in respect of any cash or distributions from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate shall not have been surrendered prior to four years after the Effective Time (or such earlier date immediately prior to such time as such amounts earlier date on which any Merger Consideration would otherwise escheat to, to or become the property of, of any Governmental Entity) ), any such Merger Consideration shall, to the extent permitted by lawapplicable Law, become the property of Parent Parent, free and clear of any all claims or interest of any person previously entitled thereto.
(f) The Paying Agent shall invest the cash included in the Exchange Fund as directed by Parent. Any interest and other income resulting from such investments will be payable to the Surviving Corporation or Parent, as Parent directs. If for any reason (including losses) the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made by the Paying Agent hereunder, Parent shall promptly deposit cash into the Exchange Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such person of a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable pursuant to this Article II.
(h) Parent, the Surviving Corporation or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as Parent, the Surviving Corporation or the Paying Agent are 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 and paid over to the appropriate Taxing Authority by Parent, 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 Certificates in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Paying Agent.
Appears in 2 contracts
Samples: Merger Agreement (McKesson Corp), Merger Agreement (Per Se Technologies Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly From and after the Effective Time, Parent shall cause each holder of an outstanding certificate or certificates (the Exchange Agent to mail, to former record holders "Certificates") which represented shares of Company Shares who Common Stock immediately prior to the Effective Time shall have not previously submitted letters of transmittal together with Certificatesthe right to surrender each Certificate to Parent, instructions for surrendering their Certificates and receive in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of all Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the held by such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that the number of whole shares of Parent Common Stock (other than the Escrow Shares (as defined in Section 2.8)) into which the Company Shares theretofore represented Common Stock evidenced by the Certificates so surrendered shall have been converted pursuant to Section 1.5 2.2(a) of this Agreement. The surrender of Certificates shall be accompanied by duly completed and (ii) a check executed Letters of Transmittal in the amount form of any cash due pursuant Exhibit B attached hereto. Until surrendered, each outstanding Certificate which prior to Section 1.5. No interest the Effective Time represented shares of Company Common Stock shall be paid or deemed for all corporate purposes to evidence ownership of the number of whole shares of Parent Common Stock into which the shares of Company Common Stock have been converted but shall, subject to applicable appraisal rights under the DGCL and Section 2.2(e), have no other rights. Subject to appraisal rights under the DGCL and Section 2.2(e), from and after the Effective Time, the holders of shares of Company Common Stock shall accrue on cease to have any rights in respect of such amountsshares and their rights shall be solely in respect of the Parent Common Stock into which such shares of Company Common Stock have been converted.
(cb) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing shares of Parent Shares Common Stock are to be issued in the name of a name person other than that the person in which whose name the Certificate Certificate(s) surrendered in exchange therefor is registered, it shall be a condition to the issuance of such exchange shares that (i) the Person Certificate(s) so surrendered shall be transferable, and shall be properly assigned, endorsed or accompanied by appropriate stock powers, (ii) such transfer shall otherwise be proper and (iii) the person requesting such transfer shall pay Parent, or its exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent agent, any transfer or other taxes required payable by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, foregoing or establish to the satisfaction of the Exchange Agent Parent that such tax has taxes have been paid or is are not applicablerequired to be paid. Beginning on Notwithstanding the date which is twelve months following foregoing, neither Parent nor the Closing DateCompany shall be liable to a holder of shares of Company Common Stock for shares of Parent or the Company issuable to such holder pursuant to the provisions of Section 2.2(a) of this Agreement that are delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed, Parent shall act issue in exchange for such lost, stolen or destroyed Certificate the shares of Parent Common Stock issuable in exchange therefor pursuant to the provisions of Section 2.2(a). The Board of Directors of Parent may, in its discretion and as a condition precedent to the Exchange Agent and thereafter any holder issuance thereof, require the owner of an unsurrendered such lost, stolen or destroyed Certificate shall look solely to provide to Parent for an indemnity agreement against any amounts to which such holder claim that may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, made against Parent with respect to the extent permitted by lawCertificate alleged to have been lost, become the property of Parent free and clear of any claims stolen or interest of any person previously entitled theretodestroyed.
Appears in 2 contracts
Samples: Merger Agreement (Lycos Inc), Merger Agreement (Lycos Inc)
Exchange of Certificates. As promptly as practicable after the Merger Date, each holder of an outstanding certificate or certificates theretofore representing shares of Allmon Common Sxxxx (aother than certificates representing Dissenting Shares) Parent shall authorize one or more Persons reasonably acceptable surrender such certificate(s) for cancellation to the Company party designated herein to act as Exchange Agent hereunder handle such exchange (the “"Exchange Agent”"). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole full shares of Parent World-Am Communications Inc. Common Stock into which the Company Shares theretofore represented shares of Allmon Common Sxxxx xepresented by the Certificates certificate or certificates so surrendered shall have been converted pursuant converted. Any exchange of fractional shares will be rounded up to Section 1.5 and the next highest number of full shares. World-Am Communications Inc. may, in its discretion, require a bond in customary form before issuing any share certificate where a corresponding share certificate has not been delivered by a shareholder of Allmon because xx xxxs or other reason. 11. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding certificate that prior to the Merger Date represented Allmon Common Sxxxx (iiother than certificates representing Dissenting Shares) a check in shall be deemed for all purposes, other than the amount payment of dividends or other distributions, to evidence ownership of the number of shares of World-Am Common Stock into which it was converted. No dividend or other distribution payable to holders of World-Am Common Stock as of any cash due pursuant date subsequent to Section 1.5. No interest the Merger Date shall be paid or shall accrue on any to the holders of outstanding certificates of Allmon Common Xxxxx; provided, however, that upon surrender and exchange of such amounts.
outstanding certificates (c) Until surrendered in accordance with the provisions of this Section 1.8other than certificates representing Dissenting Shares), each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares there shall be converted paid to the record holders of the certificates issued in exchange therefore the amount, without interest thereon, of dividends and other distributions that would have been payable subsequent to the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver Date with respect to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason shares of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicableWorld-Am Common Stock represented thereby. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto12.
Appears in 2 contracts
Samples: Merger Agreement (Labarile Paul Michael), Merger Agreement (World Am Communications Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to On the Company to act as Exchange Agent hereunder (Closing Date the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery MoqiZone Cayman Shareholders shall be effectedrequired to surrender all their MoqiZone Cayman Shares to Trestle, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates MoqiZone Cayman Shareholders shall be entitled upon such surrender to receive in exchange therefor (i) a certificate certificates representing that the proportionate number of whole shares of Parent Common Stock Exchange Shares into which the Company MoqiZone Cayman Shares theretofore represented by the Certificates so surrendered shall have been converted exchanged pursuant to Section 1.5 and (ii) a check in this Agreement. On the amount Closing Date, each outstanding certificate which, prior to the Closing Date, represented MoqiZone Cayman Shares shall be deemed for all corporate purposes, subject to the further provisions of this Article I, to evidence the ownership of the number of whole Exchange Shares for which such MoqiZone Cayman Shares have been so exchanged. However, no dividend or other consideration payable to holders of Exchange Shares of record as of any cash due pursuant date subsequent to Section 1.5. No interest the Closing Date shall be paid to the owner of any certificate which, prior to the Closing Date, represented MoqiZone Cayman Shares, until such certificate or shall accrue on any such amounts.certificates representing all the relevant MoqiZone Cayman Shares, together with a stock transfer form, are surrendered as provided in this Article I.
(cb) Until surrendered in accordance with All Exchange Shares for which the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company MoqiZone Cayman Shares shall be converted in the Merger at the Effective Time have been exchanged pursuant to this Article I shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition full satisfaction of such exchange that the Person requesting such exchange deliver all rights pertaining to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoMoqiZone Cayman Shares.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly From and after the Effective Time, Parent all Company Common Stock shall cause the Exchange Agent no longer be outstanding and shall automatically be cancelled and retired and shall cease to mailexist, to former record holders and each holder of a certificate representing shares of Company Shares who Common Stock shall cease to have not previously submitted letters of transmittal together any rights with Certificatesrespect thereto, instructions for surrendering their Certificates except the right to receive in exchange therefor, upon surrender thereof to American Stock Transfer & Trust Company or such other agent designated by Parent (the "Exchange Agent"), a certificate or certificates representing the number of whole shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.1. Notwithstanding any other provision of this Agreement, (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock have surrendered them for exchange as provided herein, no dividends shall be paid with respect to any Parent Common Stock represented by such certificates, and (ii) without regard to when such certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid on any Parent Common Stock dividends. Upon surrender of a certificate which immediately prior to the Merger ConsiderationEffective Time represented shares of Company Common Stock, there shall be paid to the holder of such certificate the amount of any dividends which theretofore became payable, but which were not paid by reason of the foregoing, with respect to the number of whole shares of Parent Common Stock represented by the certificate or certificates issued upon such surrender.
(b) If any certificate for shares of Parent Common Stock is to be issued in a name other than that in which the certificate for shares of Company Common Stock surrendered in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and the person requesting such exchange shall have paid to Parent or its transfer agent any applicable transfer or other taxes required by reason of such issuance.
(c) Promptly after the Effective Time, Parent shall deliver make available to the Exchange Agent sufficient the certificates representing shares of Parent Shares and cash Common Stock required to satisfy effect the Merger Consideration. After exchanges referred to in paragraph (a) above.
(d) Promptly after the Effective Time, upon receipt the Exchange Agent shall mail to each holder of Certificates for cancellation, together with record of a properly completed certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the "Company Certificates") (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Company Certificates shall pass, only upon actual delivery of the Company Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other requested documents as the Exchange Agent shall reasonably require and in accordance with the instructions thereon, the holder of such Company Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the shares of Company Shares Common Stock theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to the provisions of Section 1.5 3.1, and (ii) the Company Certificates so surrendered shall be cancelled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a check in the amount holder of shares of Company Common Stock for any cash due shares of Parent Common Stock or dividends or distributions thereon delivered to a public official pursuant to Section 1.5. No interest shall be paid applicable abandoned property, escheat or shall accrue on any such amountssimilar laws.
(ce) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on Promptly following the date which is twelve nine months following after the Closing DateEffective Time, Parent shall act as the Exchange Agent shall deliver to Parent all certificates (including certificates representing shares of any Parent Common Stock), property and thereafter any other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of an unsurrendered a Company Certificate shall look solely may surrender such Company Certificate to Parent for any amounts and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor the Parent Common Stock to which such person is entitled, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Subsidiary or the Surviving Corporation shall be liable to a holder of Company Common Stock for any Parent Common Stock delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(f) In the event any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Company Certificate to be lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Parent Common Stock deliverable in respect thereof determined in accordance with this Section 3.3. When authorizing such payment in exchange therefor, the Board of Directors of Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Certificate to give Parent such indemnity as it may reasonably direct as protection against any claim that may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of made against Parent or the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, Surviving Corporation with respect to the extent permitted by lawCompany Certificate alleged to have been lost, become the property of Parent free and clear of any claims stolen or interest of any person previously entitled theretodestroyed.
Appears in 1 contract
Samples: Merger Agreement (C Cor Net Corp)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable After the Effective Time of the Merger, each holder of an outstanding certificate representing OSI California Common Stock may, at such holder’s option, surrender the same for cancellation to the Company to act StockTrans, Inc. as Exchange Agent hereunder exchange agent (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of shares of the Surviving Corporation’s Common Stock into which the surrendered shares were converted as provided herein. Until so surrendered, each outstanding certificate theretofore representing shares of OSI California capital stock shall be deemed for all purposes to represent the number of whole shares of Parent Common Stock the appropriate class and series of the Surviving Corporation’s capital stock into which such shares of OSI California capital stock were converted in the Company Shares theretofore represented by Merger. The registered owner on the Certificates so surrendered books and records of the Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 the Surviving Corporation or the Exchange Agent, have and (ii) a check in the amount of be entitled to exercise any cash due pursuant voting and other rights with respect to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right and to receive Merger Consideration and, if applicable, amounts under Section 1.12dividends and other distributions upon the shares of capital stock of the Surviving Corporation represented by such outstanding certificate as provided above. Parent Shares into which Company Shares shall be converted Each certificate representing capital stock of the Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Timerestrictions on transferability as the certificates of OSI California so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws. If any certificates representing Parent Shares are certificate for shares of Surviving Corporation’s stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 1 contract
Samples: Merger Agreement (Osi Systems Inc)
Exchange of Certificates. (a) Prior to the Closing Date, Parent shall authorize one select a reputable bank or more Persons reasonably acceptable to the Company trust company to act as Exchange Agent hereunder exchange agent in the Merger (the “"Exchange Agent”"). Promptly Within one (1) business day after the Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of Shares, (i) certificates representing the shares of Parent Common Stock issuable pursuant to this Section 1, and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c) (such cash and shares of Parent Common Stock, together with any dividends or distributions with respect thereto, being referred to as the "Exchange Fund").
(b) Parent shall use its commercially reasonable best efforts to cause the Exchange Agent to mail, as soon as reasonably practicable after the Effective Time (but in any event within one (1) business day after the Effective Time), to former the record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Stock Certificates in exchange for the Merger Consideration.
(bi) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal in customary form and containing such provisions as Parent and the Company may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected, and risk of loss of, and title to, the to Company Stock Certificates shall pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration. Upon surrender of a Company Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other requested documents and in accordance with as may be reasonably required by the instructions thereonExchange Agent or Parent, (A) the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor the Merger Consideration, and (iB) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall have been converted pursuant to be immediately canceled. Until surrendered as contemplated by this Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest 1.7, each Company Stock Certificate shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with deemed, from and after the provisions of this Section 1.8Effective Time, each Certificate shall to represent for all purposes only the right to receive the Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into and any distribution or dividend the record date for which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at is after the Effective Time. If any certificates Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares are Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and, in the case of any shareholder of the Company holding at least 1,000 shares of Company Common Stock to deliver a bond (in such reasonable sum as Parent may reasonably direct), as indemnity against any claim that may be issued made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate, and, in such case, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificates the Merger Consideration. Parent shall use commercially reasonable best efforts to cause the Exchange Agent to issue shares of Parent Common Stock to the Company shareholders of record within three (3) business days after each such shareholder surrenders their Company Stock Certificate(s) and/or a name duly executed letter of transmittal to the Exchange Agent.
(c) No dividends or other than that in which distributions declared or made with respect to Parent Common Stock with a record date after the Certificate surrendered is registered, it Effective Time shall be a condition paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock that such exchange holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable escheat or similar Legal Requirements, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed to holders of Company Stock Certificates as of the Person requesting such exchange deliver date one (1) year after the Effective Time shall be delivered to Parent upon demand, and any holders of Company Stock Certificates who have not theretofore surrendered their Company Stock Certificates to the Exchange Agent all documents necessary in accordance with this Section 1.7 shall thereafter look only to evidence and effect Parent for satisfaction of their claims for the Merger Consideration to which such transfer and pay holder is entitled pursuant hereto, provided, however, that the failure of any Company shareholder to deliver its Company Stock Certificates and/or a duly executed letter of transmittal to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares within such year period shall in a name other than that of the registered holder of the Certificate surrendered, or establish no way affect such Company shareholder's right to the satisfaction receive Merger Consideration in exchange for such Company Common Stock hereunder.
(e) Each of the Exchange Agent that Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax has law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid or is not applicable. Beginning on to the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely Person to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as whom such amounts would otherwise escheat tohave been paid.
(f) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), or become for any cash amounts, delivered to any public official in compliance with any applicable abandoned property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims escheat law or interest of any person previously entitled theretosimilar Legal Requirement.
Appears in 1 contract
Samples: Merger Agreement (Cylink Corp /Ca/)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after Immediately following the Effective Time, Parent Holdco shall cause the Exchange Agent make available to maileach record holder who, to former record holders as of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver was a holder of an outstanding certificate or certificates which immediately prior to the Exchange Agent sufficient Parent Shares and cash to satisfy Effective Time represented Company Common Stock (the Merger Consideration. After the Effective Time“Certificate” or “Certificates”), upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal and instructions (which shall specify that delivery “Letter of Transmittal”) for use in effecting the surrender of the Certificates for conversion thereof. Delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon proper delivery of the Certificates to Holdco and the Exchange Agent) and other requested documents and in accordance form of Letter of Transmittal shall so reflect. Upon surrender to Holdco of a Certificate, together with the instructions thereonsuch Letter of Transmittal duly executed, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor one or more certificates as requested by the holder (iproperly issued, executed and countersigned, as appropriate) a certificate representing that number of whole shares of Parent fully paid and nonassessable shares of Holdco Common Stock into to which such holder of Company Common Stock shall have become entitled pursuant to the Company Shares theretofore represented by provisions of Section 1.8 hereof and the Certificates Certificate so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5forthwith be canceled. No interest shall will be paid or shall accrue accrued on any such amounts.
(c) Until surrendered in accordance with the provisions consideration payable upon the surrender of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective TimeCertificates. If any certificates representing Parent Shares are portion of the consideration to be received upon exchange of a Certificate is to be issued in or paid to a name person other than that the person in which whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance and payment that the Person Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent in advance any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name for Holdco Common Stock to such other than that of the registered holder of the Certificate surrenderedperson, or establish established to the satisfaction of the Exchange Agent Holdco that such tax has been paid or that such tax is not applicable. Beginning on From the date which is twelve months following Effective Time until surrender in accordance with the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this AgreementSection 1.9, any portion each Certificate shall represent for all purposes only the right to receive the consideration provided in Section 1.8. All payments of respective shares of Holdco Common Stock that are made upon surrender of Certificates in accordance with the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior terms hereof shall be deemed to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, have been made in full satisfaction of rights pertaining to the extent permitted Company Common Stock evidenced by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretosuch Certificates.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, each holder of an outstanding certificate or certificates theretofore representing Outstanding Data Transfer Shares (other than shares as to which dissenters rights have been perfected and not withdrawn or otherwise forfeited under the IBCA) upon receipt of Certificates for cancellationsurrender thereof, together with a properly completed letter of transmittal transmittal, to Xxxxxx Xxxxxxx Xxxxxx & Xxxxx (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the "Exchange Agent) and other requested documents and in accordance with the instructions thereon"), the holder of such Certificates as exchange agent for PMT, shall be entitled to receive in exchange therefor (i) any payment due in lieu of fractional shares and a certificate or certificates representing that the number of whole shares of Parent PMT Common Stock into which such holders' Outstanding Data Transfer Shares were converted in a manner reasonably satisfactory to Data Transfer. Until so surrendered, each outstanding certificate representing Outstanding Data Transfer Shares shall be deemed for all purposes to represent the number of whole shares of PMT Common Stock into which the Company Outstanding Data Transfer Shares theretofore represented by shall have been converted. PMT may, at its option, refuse to pay any dividend or other distribution, if any, payable to the Certificates so holders of shares of PMT Common Stock to the holders of certificates representing Outstanding Data Transfer Shares until such certificates are surrendered for exchange, provided, however, that, subject to the rights of PMT under its charter, upon surrender and exchange of such Data Transfer certificates there shall be paid to the record holders of the PMT stock certificate or certificates issued in exchange therefor the amount, without interest, of dividends and other distributions, if any, which have become payable with respect to the number of whole shares of PMT Common Stock into which the Outstanding Data Transfer Shares theretofore represented thereby shall have been converted pursuant and which have not previously been paid. Under the terms of its credit agreements, PMT has agreed not to Section 1.5 and (ii) a check in the amount of pay any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amountsdividends.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Exchange of Certificates. (a) At or as soon as practicable after the Closing Date, Parent shall authorize one or more Persons reasonably acceptable will send to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates a letter of transmittal together with Certificatesin customary form and containing such provisions as Parent may reasonably specify, and instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for Merger Consideration in accordance with the Merger Consideration.
(b) Promptly after the Effective Time, terms of this Section 1. Upon surrender of a Company Stock Certificate to Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery and such other documents as may be reasonably required by Parent, the Company Stock Certificate so surrendered shall be effected, canceled and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor Merger Consideration in accordance with the terms of this Section 1.
(ib) Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Closing Date, to represent only the right to receive upon such surrender Merger Consideration as contemplated by this Section 1. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery of any cash and the issuance of any certificate representing Parent Common Stock require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that number may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Closing Date shall be paid to the holder of whole any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 thereby, and (ii) a check no cash payment in the amount lieu of any cash due pursuant to Section 1.5. No interest fractional share shall be paid or shall accrue on to any such amountsholder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.8 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(cd) Until surrendered in accordance with the provisions No fractional shares of this Section 1.8, each Certificate Parent Common Stock shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which connection with the Certificate surrendered is registeredMerger, it and no certificates for any such fractional shares shall be a condition issued. In
6. lieu of such exchange that fractional shares, any holder of capital stock of the Person requesting Company who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all such exchange deliver fractional shares issuable to such holder) shall, upon surrender of such holder's Company Stock Certificate(s), be paid in cash the dollar amount (rounded to the Exchange Agent all documents necessary to evidence and effect nearest whole cent), without interest, determined by multiplying such transfer and pay to fraction by the Exchange Agent any transfer or other taxes required by reason Designated Parent Stock Price (as defined in Section 1.4) as of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver Upon surrender to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates ------------------------ a Certificate for cancellation, together with a properly completed such letter of transmittal (which shall specify that delivery shall be effectedtransmittal, duly executed and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and completed in accordance with the instructions thereonthereto, and such other documents as may be reasonably required pursuant to such instructions, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (iA) a certificate representing that number of whole shares of Parent Common Stock into Stock, if any, to which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted such holder is entitled pursuant to Section 1.5 this Article II and (iiB) a check in the amount of any cash due equal to the cash, if any, to which such holder is entitled pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Article II (including any cash in lieu of any fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 1.82.04(f) and any dividends or other distributions to which such holder is entitled pursuant to Section 2.04(d) (together, each the "Additional ---------- Payments")), and the Certificate so surrendered shall represent for all purposes only forthwith be cancelled. -------- In the right to receive event of a transfer of ownership of shares of Company Common Stock which is not registered in the transfer records of the Company, the applicable Merger Consideration andand Additional Payments, if applicableany, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to may be issued in to a name other than that in which transferee if the Certificate surrendered representing such shares of Company Common Stock is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver presented to the Exchange Agent Agent, accompanied by all documents necessary required to evidence and effect such transfer and pay to the Exchange Agent by evidence that any applicable stock transfer or other taxes required have been paid. Until surrendered as contemplated by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrenderedthis Section 2.04, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered each Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years deemed at all times after the Effective Time (or to represent only the right to receive upon such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, surrender the applicable Merger Consideration with respect to the extent permitted by lawshares of Company Common Stock formerly represented thereby and Additional Payments, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoif any.
Appears in 1 contract
Samples: Merger Agreement (Unc Inc)
Exchange of Certificates. As of the Effective Time:
(a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after who immediately before the Effective Time, Parent shall cause Time were the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters shares of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver Company's capital stock will cease to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effectedbe, and risk of loss ofwill have no rights as, and title to, the Certificates shall pass, only upon delivery holders of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonCompany's capital stock, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall but instead will have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares as provided in this Agreement.
(b) Stock certificates ("Certificates") that formerly represented shares of the Company's capital stock that have been converted into the right to receive Merger Consideration will be conclusively deemed to represent only the right to receive such Merger Consideration.
(c) The Stockholders will surrender all Certificates to OSI in exchange for the Merger Consideration into which Company Shares shall be converted in the Merger at shares of the Effective Time shall be deemed to Company's capital stock formerly represented by such Certificates have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable lawconverted. Notwithstanding any other provisions provision of this Agreement, no Stockholder will be entitled to receive any portion Merger Consideration until such Stockholder has surrendered to OSI the Certificates formerly representing the shares of the Company's capital stock that have been converted into the right to receive Merger Consideration. Neither OSI nor the Surviving Corporation nor any other person will be liable to any holder or former holder of shares of the Company's capital stock for any shares, or any dividends or other distributions with respect to shares, properly delivered to a public official pursuant to applicable abandoned-property, escheat, or similar Laws. In the event that any Certificate has been lost, stolen, or destroyed, then upon receipt by the Surviving Corporation of satisfactory evidence of the loss, theft, or destruction and of the ownership of the Certificate and a customary indemnification agreement, OSI or its paying agent will deliver the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretodeliverable in exchange for that Certificate.
Appears in 1 contract
Exchange of Certificates. (a) Parent Immediately following the execution of this Agreement and in no event more than three days after the date hereof, the Equityholders’ Representative shall authorize obtain from (i) the Requisite Stockholders, (A) the Stockholder Consent in accordance with the applicable provisions of the DGCL (including Sections 228 and 251 of the DGCL) and executed by the Requisite Stockholders, (B) an executed letter of transmittal in the form attached hereto as Exhibit J (a “Letter of Transmittal”), and (C) the Company Certificates representing all of the shares of Stock held by the Requisite Stockholders, and (iii) the Warrantholders, (A) an executed Letter of Transmittal and (B) the Company Certificates representing all of the Warrants held by the Warrantholders. As soon as reasonably practicable following the Closing Date, Threewide shall mail, fax, send electronically or send by overnight courier to each holder of record of one or more Persons reasonably acceptable shares of Stock (not otherwise obtained pursuant to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders previous sentence) a Letter of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger ConsiderationTransmittal.
(b) Promptly after Following the Effective TimeClosing (or at the Closing, Parent shall deliver to in the Exchange Agent sufficient Parent Shares case of the Requisite Stockholders and cash to satisfy the Merger Consideration. After Warrantholders) and surrender of a Company Certificate representing the Effective Time, upon receipt shares of Certificates for cancellationStock held by a Stockholder and/or the Warrants held by a Warrantholder, together with a properly completed letter Letter of transmittal (which shall specify that delivery shall be effectedTransmittal, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonduly executed, the holder of the Stock and/or Warrants represented by such Certificates Company Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number the portion of whole shares of Parent Common Stock the Merger Consideration into which the Company Shares theretofore represented by the Certificates so surrendered such Stock and/or Warrants shall have been converted pursuant to this Section 1.5 2, and (ii) a check in the amount of any cash due pursuant Company Certificate so surrendered to Section 1.5. No interest the Surviving Corporation shall be paid or shall accrue on any cancelled. If payment of such amounts.
(c) Until surrendered in accordance with portion of the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are is to be issued in made to a name Person other than that the Person in which the whose name such Company Certificate surrendered is registered, it shall be a condition of such exchange payment that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such payment shall have paid any transfer and pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the issuance payment of the portion of the Merger Consideration to a certificate representing Parent Shares in a name Person other than that of the registered holder of the Certificate surrendered, Stock and/or Warrant or establish shall have established to the satisfaction of the Exchange Agent Surviving Corporation that such tax Tax either has been paid or is not applicable. Beginning on In the date which is twelve months following event that any Company Certificate shall have been lost, stolen or destroyed, the Closing DatePurchaser shall pay in exchange therefor, Parent shall act as the Exchange Agent and thereafter any holder upon making of an unsurrendered Certificate shall look solely affidavit of that fact by the holder thereof in form and substance acceptable to Parent for any amounts the Purchaser, the portion of the Merger Consideration due in respect of such Stock and/or Warrant that is payable pursuant to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement; provided, however, that the Purchaser may, in its discretion and as a condition precedent to the issuance thereof, require the delivery of a suitable indemnity agreement by the owner of such lost, stolen or destroyed Company Certificate, and may at its option require the indemnity to be secured by a bond in form and substance satisfactory to Purchaser.
(c) The Purchaser may pay over to the Surviving Corporation any portion of the Merger Consideration remaining unclaimed five years 180 days after the Effective Time Time, and thereafter all former Equityholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cash payable upon surrender of their Company Certificates. None of the Purchaser, Merger Sub or such earlier the Surviving Corporation shall be liable to any Equityholder for any portion of the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. On the date hereof, the stock transfer books of Threewide shall be closed to transfers of Stock and exercise of Warrants outstanding immediately prior to the date hereof, and thereafter there shall be no further registration of transfers of such time as such amounts would otherwise escheat toStock or exercise of Warrants on the records of Threewide, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretounless this Agreement is terminated.
Appears in 1 contract
Samples: Merger Agreement (Move Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly Immediately after the Effective Time, Parent each Company Shareholder shall cause the Exchange Agent to mailsurrender each Company Stock Certificate held by such Company Shareholder, together with such other documents as may be reasonably required by Parent, to former record holders of Company Shares who have not previously submitted letters of transmittal together with CertificatesParent, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that the number of whole shares of Parent Common Stock into that such holder has the right to receive pursuant to the provisions of this Section 1 (less the number of shares that such holder has the right to receive but which are being placed in the Escrow Fund in accordance with Section 4.4), and the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender a certificate representing shares of Parent Common Stock as contemplated by this Section 1.
(b) Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to this Agreement such amounts as Parent or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the person or entity to whom such amounts would otherwise have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amountspaid.
(c) Until surrendered in accordance with Neither Parent nor the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares Surviving Corporation shall be converted in the Merger at the Effective Time shall be deemed liable to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition holder or former holder of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason capital stock of the issuance Company for any shares of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrenderedCommon Stock (or dividends or distributions with respect thereto), or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts cash amounts, delivered to which such holder may be dueany public official pursuant to any applicable abandoned property, subject to applicable escheat or similar law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Ebay Inc)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by the Parent shall authorize one or more Persons and reasonably acceptable to the Company to (the "Paying Agent") shall act as Exchange Agent hereunder (paying agent in effecting the “Exchange Agent”). Promptly after exchange for the Merger Consideration of certificates that, prior to the Effective Time, Parent shall cause represented Public Shares entitled to payment pursuant to Section 1.03. Upon the Exchange surrender of each such certificate and the delivery by the Paying Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates the Merger Consideration in exchange for therefor, the Merger Consideration.
(b) Promptly after certificates that, prior to the Effective Time, Parent represented outstanding Public Shares shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Considerationforthwith be canceled. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates Until so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8exchanged, each Certificate such certificate shall represent for all purposes only solely the right to receive the Merger Consideration andmultiplied by the number of Public Shares represented by such certificate. Upon the surrender and exchange of such outstanding certificate, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares the holder shall be converted in receive the Merger at the Effective Time shall be deemed to have been issued at the Effective TimeConsideration, without any interest thereon. If any certificates representing Parent Shares are cash is to be issued in paid to a name person other than that a person in which the Certificate whose name such surrendered certificate is registered, it shall be a condition of to such payment or exchange that the Person person requesting such payment or exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Paying Agent any transfer or other taxes required by reason of the issuance payment of a certificate representing Parent Shares in such cash to a name other than that of the registered holder of the Certificate surrenderedsuch surrendered certificate, or such person shall establish to the satisfaction of the Exchange Paying Agent that such tax has been paid or is not applicable. Beginning on Notwithstanding the foregoing, neither the Paying Agent nor any party to any such exchange shall be liable to a holder of Public Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property laws.
(b) At or prior to the Effective Time, Parent shall provide the Paying Agent with sufficient cash to pay the Merger Consideration to each holder of Public Shares entitled thereto.
(c) Promptly following the date which is twelve six months following after the Closing DateEffective Time, Parent the Paying Agent shall act as return to the Exchange Agent Surviving Corporation all cash (together with all interest earned thereon) and thereafter any other instruments in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall terminate. Thereafter, each holder of an unsurrendered Certificate a certificate that immediately prior to the Effective Time represented Public Shares may surrender such certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor the Merger Consideration, without interest, but shall look solely to Parent for any amounts to which such holder have no greater rights against the Surviving Corporation than may be dueaccorded to general creditors of the Surviving Corporation under Tennessee law.
(d) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of certificates that immediately prior to the Effective Time represented Public Shares a form of letter of transmittal and instructions for use in surrendering such certificates and receiving the Merger Consideration therefor.
(e) After the Effective Time, there shall be no transfers on the stock transfer books of the Company or the Surviving Corporation of any Public Shares. If, after the Effective Time, certificates that immediately prior to the Effective Time represented Public Shares are presented to the Surviving Corporation or the Paying Agent, they shall be canceled and exchanged for the Merger Consideration, as provided in Section 1.03 hereof, subject to applicable law. Notwithstanding any other provisions law in the case of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoDissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one From and after the Effective Time, a bank or more Persons trust company to be designated by FKW Sub and reasonably acceptable to the Company to (the "Exchange -------- Agent") shall act as Exchange Agent hereunder exchange agent in effecting the exchange of the Merger ----- Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the “Exchange Agent”"Certificates"). Promptly after At or prior to the Effective Time, Parent FKW Sub ------------ shall cause deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger ConsiderationConsideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash shall mail to satisfy the Merger Consideration. After the Effective Time, upon receipt each record holder of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and other requested documents instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereonthereto, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that an amount equal to the Merger Consideration multiplied by the number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall have been converted pursuant represent solely the right to Section 1.5 and (ii) a check in receive an amount equal to the amount Merger Consideration multiplied by the number of any cash due pursuant to Section 1.5Shares represented by such Certificate. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in payable upon the Merger at surrender of the Effective Time shall be deemed to have been issued at the Effective TimeCertificates. If any certificates representing Parent Shares are Merger Consideration is to be issued in paid to a name Person other than that the Person in which whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition of to such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance payment of such Merger Consideration to a certificate representing Parent Shares in a name Person other than that of the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is twelve months following 180 days after the Closing DateEffective Time, Parent the Exchange Agent's duties shall act as terminate, and any funds deposited with the Exchange Agent and thereafter any that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an unsurrendered Certificate amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall look solely to Parent for any amounts to which such holder have no greater rights against the Surviving Corporation than may be dueaccorded to general creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law. Notwithstanding any other provisions law in the case of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoDissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) As soon as practicable after the Effective Date, Parent shall authorize make available, and each shareholder of the Company immediately prior to the Effective Time will be entitled to receive, upon surrender to Parent of one or more Persons reasonably acceptable to the certificates representing Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Common Stock or Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates Preferred Stock for cancellation, together with a properly completed letter certificates representing the number of transmittal (which shall specify shares of Parent Common Stock that delivery such shareholder is entitled to receive pursuant to Section 1.7.1 hereof; provided, however, that the certificates representing the Holdback Shares shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates delivered to the Exchange Agent) and other requested documents and Escrow Agent in accordance with the instructions thereon, the holder this Agreement. The shares of Parent Common Stock that each such Certificates shareholder shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. No interest shall accrue on the Total Merger Consideration. If the Total Merger Consideration (or any portion thereof) is to be delivered to any person other than the person in whose name the certificate or certificates representing Parent Shares are to be issued shares of Company Common Stock or Company Preferred Stock surrendered in a name other than that in which the Certificate surrendered exchange therefor is registered, it shall be a condition of to such exchange that the Person person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent Parent any transfer or other taxes required by reason of the issuance payment of the Total Merger Consideration (or any portion thereof) to a certificate representing Parent Shares in a name person other than that of the registered holder of the Certificate certificate or certificates so surrendered, or shall establish to the satisfaction of the Exchange Agent Parent that such tax has been paid or is not applicable. Beginning on Notwithstanding the date which is twelve months following the Closing Dateforegoing, neither Parent nor any other party hereto shall act as the Exchange Agent and thereafter any be liable to a holder of an unsurrendered Certificate shall look solely to Parent shares of Company Common Stock or Company Preferred Stock for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Total Merger Consideration remaining unclaimed five years after delivered to a public official pursuant to applicable abandoned property, escheat and similar laws. In the Effective Time (event that any certificates representing shares of Company Common Stock or Company Preferred Stock shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the shareholder claiming such earlier date immediately prior certificate to be lost, stolen or destroyed, Parent shall issue in exchange for such time lost, stolen or destroyed certificate the shares of Parent Common Stock that such shareholder is entitled to receive pursuant to Section 1.7.1; provided, however, that Parent may in its discretion and as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, a condition precedent to the extent permitted by lawissuance thereof, become require such shareholder to provide Parent with an indemnity agreement against any claim that may be made against Parent with respect to the property of Parent free and clear of any claims certificate alleged to have been lost, stolen or interest of any person previously entitled theretodestroyed.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act As soon as Exchange Agent hereunder (the “Exchange Agent”). Promptly practicable after the Effective Time, Parent shall cause will send to the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (i) a letter of transmittal together with Certificatesin customary form and containing such provisions as Parent may reasonably specify, and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, certificates representing Parent shall deliver Common Stock. Upon surrender of a Company Stock Certificate to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonreasonably required by Parent, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that the number of whole shares of Parent Common Stock into which that such holder has the right to receive pursuant to the provisions of this Section 1 (and cash in lieu of any fractional share of Parent Common Stock), and the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender a certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by this Section 1. If any Company Stock Certificate shall have been converted pursuant lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to Section 1.5 and (ii) a check in the amount issuance of any cash due pursuant certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to Section 1.5. provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(b) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional share shall accrue on be paid to any such amountsholder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.8 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Until surrendered No fractional shares of Parent Common Stock shall be issued in accordance connection with the provisions Merger, and no certificates for any such fractional shares shall be issued. In lieu of such fractional shares, any holder of capital stock of the Company who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, upon surrender of such holder's Company Stock Certificate(s), be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the Designated Parent Stock Price.
(d) Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to this Section 1.8Agreement such amounts as Parent or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, each Certificate local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall represent be treated for all purposes only the right under this Agreement as having been paid to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as whom such amounts would otherwise escheat tohave been paid.
(e) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of capital stock of the Company for any shares of Parent Common Stock (or dividends or distributions with respect thereto), or become property offor any cash amounts, delivered to any Governmental Entity) shallpublic official pursuant to any applicable abandoned property, to the extent permitted by escheat or similar law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
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Samples: Merger Agreement (FVC Com Inc)
Exchange of Certificates. (a) At the Closing, all outstanding Company Stock Certificates shall be delivered to Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk reasonably required by Parent. Upon surrender of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates a Company Stock Certificate to the Exchange Agent) and other requested documents and in accordance with the instructions thereonParent for exchange, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a Parent corporate check as set forth in Section 1.6(b) and (ii) twenty (20) days after the Closing, a certificate representing that the number of whole shares of Parent Common Stock into which that such holder has the right to receive pursuant to the provisions of Section 1.6. Thereafter, each Shareholders who surrendered a Company Shares theretofore represented Stock Certificate at the Closing shall be entitled to receive payments as set forth in Section 1.7, subject to the conditions thereof. Each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender a certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) and cash payments as contemplated by the Certificates so surrendered this Section 1. If any Company Stock Certificate shall have been converted pursuant lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to Section 1.5 and (ii) a check in the amount issuance of any certificate representing Parent Common Stock or payment of any cash due pursuant hereunder, require the owner of such lost, stolen or destroyed Company Stock Certificate to Section 1.5. provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(b) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional share shall accrue on be paid to any such amountsholder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.10 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Until surrendered in accordance with the provisions No fractional shares of this Section 1.8, each Certificate Parent Common Stock shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which connection with the Certificate surrendered is registeredMerger, it and no certificates for any such fractional shares shall be a condition issued. In lieu of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrenderedfractional shares, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion capital stock of the Merger Consideration remaining unclaimed five years Company who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after the Effective Time (or such earlier date immediately prior aggregating all fractional shares of Parent Common Stock issuable to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entityholder) shall, upon surrender of such holder's Company Stock Certificate(s), be paid in cash the dollar amount (rounded to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.nearest
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Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable After the Effective Date, each holder of an outstanding certificate representing shares of Merging Corporation common stock may be asked to surrender the Company same for cancellation to act as Exchange Agent hereunder an exchange agent, whose name will be delivered to holders prior to any requested exchange (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent Common Surviving Corporation Stock, into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of Merging Corporation common stock shall be deemed for all purposes to represent the number of shares of Surviving Corporation Stock into which such shares of Merging Corporation common stock were converted in the Company Shares theretofore represented by Merger. The registered owner on the Certificates so surrendered books and records of Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 Surviving Corporation or the Exchange Agent, have and (ii) a check in the amount of be entitled to exercise any cash due pursuant voting and other rights with respect to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right and to receive Merger Consideration and, if applicable, amounts under Section 1.12dividends and other distributions upon the shares of Surviving Corporation Stock represented by such outstanding certificate as provided above. Parent Shares into which Company Shares shall be converted Each certificate representing shares of Surviving Corporation Stock so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Timerestrictions on transferability as the certificates of Merging Corporation so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of Surviving Corporation in compliance with applicable laws. If any certificates representing Parent Shares are certificate for shares of Surviving Corporation Stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
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Exchange of Certificates. (a) Parent shall authorize one Upon (i) with respect to each Signing Stockholder, delivery of the items set forth in Sections 2.11(b)(i), (ii) and (iii) or more Persons reasonably acceptable (ii) with respect to each Former Holder, other than the Company to act as Exchange Agent hereunder Signing Stockholders, surrender of any Certificates (the “Exchange Agent”other than Certificates representing Dissenting Shares). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed duly executed letter of transmittal in the form attached as Exhibit E hereto (which shall specify that delivery shall be effecteda “Letter of Transmittal”) and a duly executed Support Agreement to Parent or the Surviving Corporation, and risk of loss ofthen, and title toin each such case, the Certificates holder of each Certificate shall passreceive from the Surviving Corporation and/or Parent in exchange for each share of Company Stock evidenced thereby, only upon delivery the applicable Closing Date Payment to which such holder is entitled pursuant to Section 2.7 and Section 2.8 in respect of its shares of Company Stock, in the Certificates to the Exchange Agent) and other requested documents and form of cash by wire transfer of immediately available funds (or by check if so indicated by any such holder in his or her Letter of Transmittal). Each Certificate surrendered in accordance with the instructions thereonprovision of this Section 2.9 shall be canceled; provided that, notwithstanding the cancellation of such Certificate, the holder Former Holder shall remain entitled to receive, for each share of such Certificates Company Stock evidenced thereby, the applicable Closing Date Payment and any applicable Distribution Per Share Amount. If payment or delivery is to be made to a Person other than the Person in whose name a Certificate so surrendered is registered, it shall be entitled to receive in exchange therefor (i) a certificate representing condition of payment that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates Certificate so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check be properly endorsed or otherwise in proper form for transfer, that the amount of signatures on the certificate or any cash due pursuant to Section 1.5. No interest related stock power shall be properly guaranteed and that the Person requesting such payment 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 satisfaction of the Surviving Corporation that such Tax has been paid or shall accrue on any such amounts.
(c) is not applicable. Until surrendered in accordance with the provisions of this Section 1.82.9, each Certificate (other than Certificates canceled pursuant to Section 2.8(b) and Certificates representing Dissenting Shares) shall represent for all purposes only the right to receive Merger Consideration andthe applicable Closing Date Payment and any applicable Distribution Per Share Amount (if any), if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at form provided for by this Agreement, without interest.
(b) In the Effective Time event that any Certificate (other than any Certificate representing Dissenting Shares) shall be deemed to have been issued at lost, stolen or destroyed, upon the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than making of an affidavit of that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence fact and effect such transfer and pay to the Exchange Agent any transfer or other taxes required indemnity by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the such lost, stolen or destroyed Certificate surrendered, or establish in form and substance reasonably acceptable to the satisfaction of Company (if such affidavit is accepted before the Exchange Agent that Effective Time) or the Surviving Corporation (if such tax has been paid affidavit is accepted after the Effective Time), the Surviving Corporation will deliver in exchange for such lost, stolen or is destroyed Certificate the applicable Closing Date Payment and any applicable Distribution Per Share Amount in respect thereof in the manner set forth in Section 2.7 and Section 2.8.
(c) If Certificates are not applicable. Beginning on surrendered prior to the date which that is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five two (2) years after the Effective Time (or such earlier date date, immediately prior to such time as such when the amounts would otherwise escheat to, to or become property of, of any Governmental EntityAuthority), unclaimed amounts (including interest thereon) of the Closing Date Payments and any Distributions, as applicable, shall, to the extent permitted by lawapplicable Law, become the property of Parent the Surviving Corporation and may be commingled with the general funds of the Surviving Corporation, free and clear of any all claims or interest of any person Person previously entitled thereto. Notwithstanding the foregoing, any Stockholders who have not theretofore complied with the provisions of this Section 2.9 shall thereafter look only to the Surviving Corporation or Parent, as applicable, and only as general creditors thereof for payment for their claims in the form and amounts to which such Stockholders are entitled.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of the shares of Company Stock that were outstanding immediately prior to the Effective Time. Subject to Section 2.9(c), if, after the Effective Time, Certificates (other than Certificates representing Dissenting Shares) are presented to the Surviving Corporation, they shall be canceled and exchanged for the consideration as provided for, and in accordance with, the provisions of this Agreement.
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Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly From and after the Effective Time--Mexico, Parent Nu Skin Enterprises shall cause effect the Exchange Agent payment of the Mexico Merger Consideration upon surrender of certificates that, prior to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time--Mexico, Parent represented shares of Nu Skin Mexico Common and the certificates representing the capital stock of Nu Skin Mexico, S.A. de C.V. duly endorsed or accompanied by a duly endorsed stock power (the "Mexico Certificates"). Upon the surrender of the Mexico Certificates, Nu Skin Enterprises shall deliver pay the holder of the Mexico Certificates the Mexico Merger Consideration to be paid to such holder pursuant to Section 2.3.7 above in exchange therefor, and the Exchange Agent sufficient Parent Shares and cash Mexico Certificate that, prior to satisfy the Merger Consideration. After the Effective Time--Mexico, upon receipt represented shares of Certificates for cancellationNu Skin Mexico Common, together with a properly completed letter of transmittal (which shall specify that delivery shall forthwith be effected, canceled. Until so surrendered and risk of loss of, and title toexchanged, the Mexico Certificates (other than Mexico Certificates representing Mexico Dissenting Shares or shares of Nu Skin Mexico Common held by Nu Skin Mexico) shall pass, only upon delivery of represent solely the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled right to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock the Mexico Merger Consideration into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted such certificates may be exchanged pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.52.3.7 above. No interest shall be paid or shall accrue on the Mexico Merger Consideration. If the Mexico Merger Consideration (or any such amounts.
(cportion thereof) Until is to be delivered to any Person other than the Person in whose name the Mexico Certificate formerly representing shares of Nu Skin Mexico Common surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered exchange therefor is registered, it shall be a condition of to such exchange that the Mexico Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent Nu Skin Enterprises any transfer or other taxes required by reason of the issuance payment of the Mexico Merger Consideration to a certificate representing Parent Shares in a name Person other than that of the registered holder of the Mexico Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent Nu Skin Enterprises that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable Prior to the Closing, the Company will deliver to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (i) a letter of transmittal together with Certificatesin the form of Exhibit G (a “Letter of Transmittal”), and (ii) instructions for surrendering their Certificates use in exchange effecting the surrender of Company Stock Certificates. Upon surrender of a Company Stock Certificate to Parent for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed letter duly executed Letter of transmittal (which shall specify that delivery shall Transmittal and such other documents as may be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonreasonably required by Parent, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate representing the consideration that number of whole shares of Parent Common Stock into which such holder has the Company Shares theretofore represented by the Certificates so surrendered shall have been converted right to receive pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.81, and the Company Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.8(a), each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under upon such surrender as contemplated by this Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time1. If any certificates representing Company Stock Certificate shall have been lost, stolen or destroyed, Parent Shares may, in its discretion and as a condition precedent to the delivery of any Merger Consideration therefor, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit of lost certificate.
(b) Parent and the Surviving Corporation shall be entitled to deduct and withhold from any Merger Consideration payable or otherwise deliverable to any holder or former holder of Company Capital Stock or Company Options pursuant to this Agreement such amounts as Parent or the Surviving Corporation determines in good faith are required to be issued in a name deducted or withheld therefrom under the Code or under any other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver Legal Requirement relating to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicableTaxes. Beginning on the date which is twelve months following the Closing Date, Parent shall act as have the Exchange Agent right to withhold and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of deduct from the Merger Consideration remaining unclaimed five years after payable to Xxxxx Styles any sum that may be owed to the Effective Time (Company by him pursuant to that certain Demand Promissory Note, dated March 16, 2004 and that certain Demand Promissory Note, dated November 1, 2006. To the extent such amounts are so deducted or withheld in any of the foregoing cases, such earlier date immediately prior amounts shall be treated for all purposes under this Agreement as having been paid to such time as the Person to whom such amounts would otherwise escheat to, or become property of, any Governmental Entityhave been paid.
(c) shall, to To the fullest extent permitted by applicable law, become Parent and the property of Parent free and clear Surviving Corporation shall be relieved of any claims and all liability to any holder or interest former holder of Company Capital Stock for any person previously entitled theretoMerger Consideration delivered to any public official in good faith pursuant to any applicable abandoned property law, escheat law or similar Legal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly From and after the Effective Time, Parent shall cause each holder of an outstanding certificate which immediately prior to the Exchange Agent to mail, to former record holders Effective Time represented shares of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates Common Stock shall be entitled to receive in exchange therefor, upon surrender thereof to an exchange agent reasonably satisfactory to Parent and the Company (the "Exchange Agent"), a certificate or certificates representing the number of whole shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.1(a). Notwithstanding any other provision of this Agreement, (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock have surrendered them for exchange as provided herein, no dividends or other distributions shall be paid with respect to any shares represented by such certificates and no payment for fractional shares shall be made and (ii) without regard to when such certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid on any dividends or other distributions or any payment for fractional shares. Upon surrender of a certificate which immediately prior to the Merger ConsiderationEffective Time represented shares of Company Common Stock, there shall be paid to the holder of such certificate the amount of any dividends or other distributions which theretofore became payable, but which were not paid by reason of the foregoing, with respect to the number of whole shares of Parent Common Stock represented by the certificate or certificates issued upon such surrender.
(b) If any certificate for shares of Parent Common Stock is to be issued in a name other than that in which the certificate for shares of Company Common Stock surrendered in exchange therefor is registered, it shall be a condition of such exchange that the person requesting such exchange shall pay any applicable transfer or other taxes required by reason of such issuance.
(c) Promptly after the Effective Time, Parent shall deliver make available to the Exchange Agent sufficient the certificates representing shares of Parent Shares Common Stock required to effect the exchanges referred to in paragraph (a) above and cash for payment of any fractional shares referred to satisfy the Merger Consideration. After in Section 3.4.
(d) Promptly after the Effective Time, upon receipt the Exchange Agent shall mail to each holder of Certificates for cancellation, together with record of a properly completed certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the "Company Certificates") (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Company Certificates shall pass, only upon actual delivery of the Company Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other requested documents and in accordance with as the instructions thereonExchange Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the shares of Company Shares Common Stock theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to the provisions of Section 1.5 3.1(a), and (ii) the Company Certificates so surrendered shall be canceled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a check in the amount holder of shares of Company Common Stock for any cash due shares of Parent Common Stock or dividends or distributions thereon delivered to a public official pursuant to Section 1.5. No interest shall be paid applicable abandoned property, escheat or shall accrue on any such amountssimilar laws.
(ce) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on Promptly following the date which is twelve nine months following after the Closing DateEffective Time, Parent shall act as the Exchange Agent shall deliver to Parent all cash, certificates (including any Parent Common Stock) and thereafter any other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of an unsurrendered a Company Certificate shall look solely may surrender such Company Certificate to Parent for any amounts to which such holder may be due, the Surviving Corporation and (subject to applicable lawabandoned property, escheat and similar laws) receive in exchange therefor the Parent Common Stock, without any interest thereon. Notwithstanding any other provisions of this Agreementthe foregoing, any portion none of the Merger Consideration remaining unclaimed five years after Exchange Agent, Parent, Subsidiary, the Effective Time Company or the Surviving Corporation shall be liable to a holder of shares of Company Common Stock for any shares of Parent Common Stock delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such earlier date immediately prior Company Certificate to be lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such time lost, stolen or destroyed Company Certificate the Parent Common Stock deliverable in respect thereof determined in accordance with this Article III. When authorizing such issuance in exchange therefor, the Board of Directors of the Surviving Corporation may, in its discretion and as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, a condition precedent to the extent permitted by lawissuance thereof, become require the property owner of Parent free and clear of such lost, stolen or destroyed Company Certificate to give the Surviving Corporation such indemnity as it may reasonably direct as protection against any claims claim that may be made against the Surviving Corporation with respect to the Company Certificate alleged to have been lost, stolen or interest of any person previously entitled theretodestroyed.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective TimeDate, upon receipt each holder of Certificates an outstanding certificate representing shares of Ikona-Nevada Common Stock may, at such stockholder's option, surrender the same for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effectedcancellation to the Surviving Corporation or its transfer agent, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent the Surviving Corporation's Common Stock into which the Company Shares surrendered shares were converted as herein provided. Unless and until so surrendered, each outstanding certificate theretofore representing shares of Ikona-Nevada Common Stock shall be deemed for all purposes to represent the number of shares of the Surviving Corporation's Common Stockinto which such shares were converted in the Merger. The registered owner on the books and records of Ikona-Nevada of any shares of capital stock represented by the Certificates so surrendered such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or otherwise accounted for to Section 1.5 the Surviving Corporation or its transfer agent, have and (ii) a check in the amount of be entitled to exercise any cash due pursuant voting and other rights with respect to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right and to receive Merger Consideration and, if applicable, amounts under Section 1.12any dividend and other distributions upon the shares of capital stock of the Surviving Corporation represented by such outstanding certificate as provided above. Parent Shares into which Company Shares shall be converted Each certificate representing capital stock of the Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Timerestrictions on transferability as the certificates of Ikona-Nevada so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws, or other such additional legends as agreed upon by the holder and the Surviving Corporation. If any certificates representing Parent Shares are certificate for shares of capital stock of the Surviving Corporation is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent Surviving Corporation or its transfer agent any transfer or other taxes required payable by reason of the issuance of a certificate representing Parent Shares such new certificates in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 1 contract
Exchange of Certificates. (a) Prior the Effective Date, Parent shall authorize one designate a bank or more Persons reasonably acceptable to the Company trust company to act as Exchange Agent hereunder exchange agent (the “Exchange Agent”). Promptly after "EXCHANGE AGENT") in effecting the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
Consideration of stock certificates (bthe "CERTIFICATES") Promptly after which, prior to the Effective TimeDate, Parent shall deliver represented Shares entitled to payment pursuant to Section 2.5. Upon the surrender for cancellation to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationsuch Certificates, together with a properly completed letter of transmittal (which shall specify that delivery shall be effectedtransmittal, duly executed and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and completed in accordance with the instructions thereon, and any other items specified in the holder letter of transmittal, the Exchange Agent shall promptly pay to the Person entitled thereto the Merger Consideration deliverable in respect thereto and such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates canceled. Until so surrendered shall have been converted and exchanged, each such Certificate (other than Certificates representing Shares to be canceled pursuant to Section 1.5 2.5(b) and (iiShares held by Dissenting Stockholders) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only solely the right to receive the Merger Consideration and, if applicable, amounts under Section 1.12. Parent multiplied by the number of Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Timerepresented by such Certificate. If any certificates representing Parent Shares are cash is to be issued in paid to a name Person other than that the Person in which the Certificate representing Shares surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that the Certificates so surrendered shall be properly endorsed or accompanied by appropriate stock powers and otherwise in proper form for transfer, that such transfer otherwise be proper and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance payment of such cash to a certificate representing Parent Shares in a name Person other than that of the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on Notwithstanding anything in this Agreement, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property laws. In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent will issuein exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof as determined in accordance with this Article 2, provided that, the Person to whom the Merger Consideration is paid shall, as a condition precedent to the payment thereof, give the Surviving Corporation a bond in such amount as it may direct or otherwise indemnify the Surviving Corporation in a manner satisfactory to it against any claim that may be made against the Surviving Corporation with respect to the Certificate claimed to have been lost, stolen or destroyed.
(b) Promptly following the date which is twelve six months following after the Closing Effective Date, the Exchange Agent shall return to the Surviving Corporation all cash and property in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of a Certificate representing a Share may surrender such Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor the Merger Consideration, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation under applicable law.
(c) Promptly after the Effective Date, Parent shall act as cause the Exchange Agent and thereafter any to mail or make available to each record holder of an unsurrendered Certificates which immediately prior to the Effective Date represented Shares (other than Shares to be canceled pursuant to Section 2.5(b)) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificate shall look solely pass, only upon proper delivery of the Certificates to Parent the Exchange Agent) and instructions for any amounts to which use in surrendering such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of Certificates and receiving the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretotherefor.
Appears in 1 contract
Samples: Merger Agreement (Childrens Discovery Centers of America Inc)
Exchange of Certificates. (a) Parent shall authorize one Prior to receiving any portion of the Merger Consideration, each holder of record of a certificate or more Persons reasonably acceptable certificates that immediately prior to the Effective Time represented issued and outstanding shares of Company to act as Exchange Agent hereunder Stock (the “Exchange AgentCertificates”). Promptly after the Effective Time, Parent ) shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver delivered to the Exchange Paying Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with (i) a properly completed and duly executed letter of transmittal in a form and substance reasonably satisfactory to the Paying Agent and the Purchaser (which a “Letter of Transmittal”) and (ii) the Certificates held of record by such holder. Such Letter of Transmittal shall specify have been previously delivered by the Paying Agent to such holder along with instructions thereto and a notice providing that delivery of the Certificates shall be effected, and that risk of loss of, and title to, to the Certificates shall pass, pass only upon delivery of the Certificates to the Exchange Paying Agent) and other requested documents and in accordance . Upon surrender of a Certificate to the Paying Agent, together with the instructions thereonsuch Letter of Transmittal, duly executed, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock the Merger Consideration into which the Company Shares theretofore shares represented by the Certificates so surrendered such Certificate shall have been converted pursuant to Section 1.5 2.5(a), and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest Certificate so surrendered shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with canceled. If the provisions portion of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in paid with respect to such shares is to be paid to a name Person other than that the Person in which whose name the Certificate so surrendered is registered, it shall be a condition of exchange that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer, and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the issuance of exchange to a certificate representing Parent Shares in a name Person other than that of the registered holder of the such Certificate surrendered, or establish to the reasonable satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not applicable. Beginning Until surrendered as contemplated by this Section 2.6(a), each Certificate shall be deemed as of the Effective Time to represent only the right to receive, upon surrender of such Certificate in accordance with this Section 2.6(a), the Merger Consideration into which the shares of Common Stock shall have been converted pursuant to Section 2.5(a). If any Certificate shall have been lost, stolen or destroyed, the Paying Agent may, in its discretion and as a condition precedent to the issuance of any Merger Consideration in respect thereof pursuant to Section 2.5(a), require the owner of such lost, stolen or destroyed Certificate to provide an appropriate affidavit or indemnity agreement with respect to such Certificate.
(b) All Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article II shall be deemed to have been exchanged and paid in full satisfaction of all rights pertaining to the shares of Common Stock represented by such Certificates, and there shall be no further registration of transfers on the date which is twelve months stock transfer books of the Surviving Corporation of the shares of the Common Stock that were issued and outstanding immediately prior to the Effective Time of the Merger. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged for the applicable portion of the Merger Consideration as provided in this Article II.
(c) Subject to applicable Laws, at any time following the first anniversary of the Closing Date, Parent the Surviving Corporation shall act as be entitled to require the Exchange Paying Agent to deliver to it any funds (including any interest received with respect thereto) that had been made available to the Paying Agent and thereafter any holder of an unsurrendered Certificate which have not been disbursed to the Stockholders, and, thereafter, such Stockholders shall be entitled to look solely only to Parent for any amounts to which such holder may be due, the Surviving Corporation (subject to applicable law. Notwithstanding abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the payment of any other provisions Merger Consideration that would otherwise be payable upon surrender of any Certificates held by such Stockholders, as determined pursuant to this Agreement, without any interest thereon. Any amounts remaining unclaimed by such Stockholders at such time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Laws, the property of the Purchaser, free and clear of all claims or interests of any Person previously entitled thereto. Notwithstanding the foregoing, none of the Purchaser, Merger Sub or the Surviving Corporation shall be liable to any former Stockholders for any portion of the Merger Consideration remaining unclaimed or interest thereon properly delivered to a public official pursuant to any applicable abandoned property, escheat or other similar Law.
(d) The Paying Agent, the Purchaser, Merger Sub or the Surviving Corporation (as appropriate) shall be entitled to deduct and withhold from the portion of the Merger Consideration otherwise payable pursuant to this Agreement to any Stockholders such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax Law; provided, however, that the Paying Agent must be provided with prior written notice by the Purchaser, Merger Sub or the Surviving Corporation of any such required withholding at least five years after the Effective Time (or such earlier date immediately 5) days’ prior to the date of such time payment. To the extent that amounts are so withheld, (i) such withheld amounts shall be treated for all purposes of this Agreement as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, having been paid to the extent permitted by lawStockholders in respect of which such deduction and withholding was made and (ii) the Paying Agent, become the property Purchaser, the Company or the Surviving Corporation (as appropriate) shall provide such Stockholders written notice of Parent free and clear of any claims the amounts so deducted or interest of any person previously entitled theretowithheld.
Appears in 1 contract
Samples: Merger Agreement (Aramark)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable After the Effective Date of the Merger, each holder of an outstanding certificate representing PARENT Common Stock may, at such holder’s option, surrender the same for cancellation to the Company to act as Exchange Agent hereunder PARENT’s transfer agent (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of shares of the Surviving Corporation’s Common Stock into which the surrendered shares were converted as provided herein. Until so surrendered, each outstanding certificate theretofore representing shares of PARENT capital stock shall be deemed for all purposes to represent the number of whole shares of Parent Common Stock the appropriate class and series of the Surviving Corporation’s capital stock into which such shares of PARENT capital stock were converted in the Company Shares theretofore represented by Merger.
a. The registered owner on the Certificates so surrendered books and records of the Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 the Surviving Corporation or the Exchange Agent, have and (ii) a check in be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the amount shares of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any capital stock of the Surviving Corporation represented by such amountsoutstanding certificate as provided above.
(c) Until surrendered in accordance with b. Each certificate representing capital stock of the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Time. restrictions on transferability as the certificates of PARENT so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws.
c. If any certificates representing Parent Shares are certificate for shares of the Surviving Corporation’s stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable At least five Business Days prior to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent Merger Company shall designate the Company's registrar and transfer agent, or such other bank or trust company as is reasonably satisfactory to the Company, to act as exchange agent for the holders of Common Shares and Class TM Shares (collectively, the "Shares") in connection with the Merger, pursuant to an agreement providing for the matters set forth in this Section 2.2 and such other matters as may be appropriate and the terms of which are reasonably satisfactory to the Company (the "Exchange Agent"), for the payment of the applicable Merger Consideration. Immediately prior to the Effective Time, Finance Company and the Company will cause to be deposited in trust with the Exchange Agent for the benefit of holders of the Shares, as applicable, (i) the amount of cash, (ii) certificates representing the number of whole shares of Surviving Corporation Preferred Stock, (iii) certificates representing the number of whole shares of Surviving Corporation Junior Preferred Stock and (iv) certificates representing the number of whole shares of Surviving Corporation Common Stock necessary to complete the transactions contemplated by this Section 2.2 on a timely basis (the "Exchange Fund"). At the Effective Time, the Surviving Corporation will instruct the Exchange Agent to mailpromptly, to former record holders of Company Shares who have and in any event not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after later than three Business Days following the Effective Time, Parent shall deliver mail (and to make available for collection by hand) to each holder of record of Common Stock Certificates or Class TM Certificates (collectively, the Exchange Agent sufficient Parent Shares and cash "Certificates"), whose shares were converted pursuant to satisfy Section 2.1 into the right to receive the applicable Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with Consideration (i) a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the to such Certificates shall pass, only upon delivery of the such Certificates to the Exchange AgentAgent and shall be in such form and have such other provisions as Merger Company and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for payment of the applicable Merger Consideration (which shall provide that, at the election of the surrendering holder, Certificates may be surrendered, and the applicable Merger Consideration therefor collected, by hand delivery). At least two Business Days prior to the Effective Time, Merger Company will cause the Exchange Agent to make available for collection by hand at its offices in New York, New York, the letter of transmittal and instructions referred to in the immediately preceding sentence. Upon surrender of a Certificate for cancellation to the Exchange Agent or to such other requested documents and in accordance agent or agents as may be appointed by the Company, together with the instructions thereonsuch letter of transmittal, duly executed, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number the applicable Merger Consideration for each share of whole shares of Parent Company Common Stock into which or Class TM Preferred Stock, as the Company Shares theretofore case may be, formerly represented by such Certificate, to be mailed within three Business Days of receipt thereof (and made available for collection by hand immediately following the Certificates Effective Time if the completed letter of transmittal is received at least one Business Day prior to the Effective Time), and the Certificate so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in forthwith be cancelled. If payment of the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive applicable Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall is to be converted in the Merger at the Effective Time shall be deemed made to have been issued at the Effective Time. If any a person or stock certificates representing Parent Shares are to be issued in to a name person other than that the person in which whose name the surrendered Certificate surrendered is registered, it shall be a condition of such exchange payment or issuance that the Person Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such payment shall have paid any transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance payment of the applicable Merger Consideration to a certificate representing Parent Shares in a name person other than that of the registered holder of the Certificate surrendered, surrendered or establish shall have established to the satisfaction of the Exchange Agent Surviving Corporation that such tax either has been paid or is not applicable. Beginning on In the date event of a transfer of ownership of Company Common Stock which is twelve months following not registered in the Closing Datetransfer records of the Company, Parent shall act as the Exchange Agent applicable Merger Consideration and thereafter a check in the proper amount of cash in lieu of any holder fractional shares of an unsurrendered Certificate shall look solely Surviving Corporation Preferred Stock pursuant to Parent for Section 2.2(d) and any amounts dividends or other distributions to which such holder is entitled, may be dueissued with respect to such Company Common Stock to such a transferee if the Certificates representing such Company Common Stock are presented to the Exchange Agent (or if lost, subject stolen or destroyed, the procedures set forth in Section 2.2(e) are complied with), accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable law. Notwithstanding stock transfer taxes have been paid.
(b) Until surrendered as contemplated by this Section 2.2, each Certificate (other than Certificates representing Company Common Stock held by Merger Company, or any other provisions Subsidiary of this AgreementMerger Company, or Dissenting Shares (as defined in Section 2.4)) shall be deemed at any portion of the Merger Consideration remaining unclaimed five years time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by this Section 2.2. No interest or dividends shall be paid or will accrue on any Merger Consideration payable to holders of Certificates pursuant to the provisions of this Article II (other than dividends, if any, accruing on the Surviving Corporation Preferred Stock, Surviving Corporation Junior Preferred Stock or Surviving Corporation Common Stock from the Effective Time pursuant to the terms thereof). Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of any such earlier date shares for any Surviving Corporation Preferred Stock, Surviving Corporation Junior Preferred Stock or Surviving Corporation Common Stock or dividends thereon, or, in accordance with Section 2.2(d), cash in lieu of fractional shares thereof, delivered to a public official pursuant to applicable escheat law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Surviving Corporation Preferred Stock, Surviving Corporation Junior Preferred Stock or Surviving Corporation Common Stock held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect to such Surviving Corporation Preferred Stock, Surviving Corporation Junior Preferred Stock and Surviving Corporation Common Stock for the account of the persons entitled thereto.
(c) Any portion of the Exchange Fund and the Fractional Securities Fund (as defined in Section 2.2(d)) which remains unclaimed by the former stockholders of the Company for one year after the Effective Time shall be delivered to Surviving Corporation, upon demand of Surviving Corporation, and any former stockholders of the Company shall thereafter look only to Surviving Corporation for payment of their claim for the Merger Consideration for the shares or for any cash in lieu of fractional shares of Surviving Corporation Preferred Stock, Surviving Corporation Junior Preferred Stock or Surviving Corporation Common Stock.
(d) No fractional shares of Surviving Corporation Preferred Stock, Surviving Corporation Junior Preferred Stock or Surviving Corporation Common Stock shall be issued in the Merger. Each holder of shares of Surviving Corporation Preferred Stock, Surviving Corporation Junior Preferred Stock or Surviving Corporation Common Stock to which such holder otherwise would have been entitled pursuant to Section 2.2 (after taking into account all Shares then held of record by such holder) shall receive in lieu thereof, a cash payment in an amount equal to the product of (i) in the case of Surviving Corporation Preferred Stock the fractional interest of each such share to which such holder otherwise would have been entitled, multiplied by $100 and (ii) in the case of Surviving Corporation Junior Preferred Stock or Surviving Corporation Common Stock, as applicable, the fractional interest of each such share to which such holder otherwise would have been entitled, multiplied by $15.625 (the cash comprising such aggregate payments in lieu of such fractional shares being hereinafter referred to as the "Fractional Securities Fund"). The Company shall, immediately prior to the Effective Time, make available to the Exchange Agent cash in an amount sufficient to make the payments in lieu of such time fractional shares as aforesaid.
(e) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person (as defined in Section 8.5) claiming such amounts would otherwise escheat toCertificate to be lost, stolen or become property ofdestroyed, any Governmental Entity) the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration deliverable in respect thereof as determined in accordance with this Article II, provided that the Person to whom the Merger Consideration is paid shall, as a condition precedent to the extent permitted by lawpayment thereof, become give the property Surviving Corporation a bond in such sum as the Surviving Corporation may direct or otherwise indemnify the Surviving Corporation in a manner satisfactory to it against any claim that may be made against the Surviving Corporation with respect to the Certificate claimed to have been lost, stolen or destroyed.
(f) After the Effective Time, the stock transfer books of Parent free the Company shall be closed and clear there shall be no transfers on the stock transfer books of any claims or interest the Surviving Corporation of any person previously entitled theretoshares of Company Common Stock and Class TM Preferred Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration as provided in this Article II, subject to Section 262 of the DGCL.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Johns Manville Corp /New/)
Exchange of Certificates. (a) On or prior to the Closing Date, Parent shall authorize one select a reputable bank or more Persons trust company reasonably acceptable to the Company to act as Exchange Agent hereunder the paying agent in connection with the Merger (the “Exchange Paying Agent”). Promptly after As of the Effective Time, Parent shall cause have deposited with the Exchange Agent to mailPaying Agent, to former record in trust for the benefit of the Persons who were registered holders of Company Ordinary Shares who have not previously submitted letters of transmittal together and Company Founder Shares immediately prior to the Effective Time, cash in an amount equal to the aggregate consideration payable pursuant to Section 1.5(a)(ii). The cash amount so deposited with Certificates, instructions for surrendering their Certificates in exchange for the Merger ConsiderationPaying Agent is referred to as the “Payment Fund.”
(b) Promptly after As soon as reasonably practicable following the Effective Time, Parent shall deliver the Company will provide to the Exchange Paying Agent sufficient Parent a list of the registered holders of Company Ordinary Shares and cash to satisfy the Merger Consideration. After Company Founder Shares at the Effective Time, upon receipt of Certificates for cancellation, together with Time and the Paying Agent will mail to such registered holders: (i) a properly completed letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and that the Company may reasonably approve prior to the Effective Time (which shall specify including a provision confirming that delivery of Company Share Certificates shall be effected, and risk of loss of, and title to, the to Company Share Certificates shall pass, only upon delivery of the such Company Share Certificates to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Share Certificates in exchange for the Merger Consideration pursuant to such letter of transmittal. Upon surrender of a Company Share Certificate to the Paying Agent in exchange for the Merger Consideration, together with a duly executed letter of transmittal and such other requested customary documents and in accordance with as may be reasonably required by the instructions thereon, Paying Agent or Parent: (A) the holder of such Certificates Company Share Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that the Merger Consideration multiplied by the number of whole shares of Parent Common Stock into which the Company Ordinary Shares theretofore or Company Founder Shares, as applicable, formerly represented by the Certificates Company Share Certificate; and (B) the Company Share Certificate so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Timecanceled. If any certificates representing Parent Shares are cash is to be issued in paid to a name Person other than that the Person in which whose name the Company Share Certificate surrendered is registered, it shall be a condition of such exchange payment that the Company Share Certificate so surrendered shall be properly endorsed (with such signature guarantees as may be required by the letter of transmittal) or otherwise in proper form for transfer, and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and payment shall: (1) pay to the Exchange Paying Agent any transfer or other taxes Taxes required by reason of the issuance of such payment to a certificate representing Parent Shares in a name Person other than that of the registered holder of the Company Share Certificate surrendered, ; or (2) establish to the satisfaction of the Exchange Agent Parent that such tax Tax has been paid or is not required to be paid. The exchange procedures shall comply with such procedures as may be required by the Israeli Tax Rulings (as defined in Section 5.3(b)), if obtained, and shall permit Parent (after consultation with the Company) to require holders of Company Ordinary Shares to provide any information as is reasonably needed to comply with the Israeli Tax Rulings. Until surrendered as contemplated by this Section 1.7(b), each Company Share Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive cash in an amount equal to the Merger Consideration multiplied by the number of Company Ordinary Shares or Company Founder Shares, as applicable, represented by such Company Share Certificate, without interest thereon. Beginning on If any Company Share Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition precedent to the delivery of any Merger Consideration, require the owner of such lost, stolen or destroyed Company Share Certificate to provide an appropriate affidavit and to deliver a bond in such sum as Parent may reasonably direct, as indemnity against any claim that may be made against the Paying Agent, Parent, the Surviving Company or any affiliated party with respect to such Company Share Certificate.
(c) Any portion of the Payment Fund that remains undistributed to holders of Company Share Certificates as of the date which is twelve months following 180 days after the Closing DateDate shall be delivered by the Paying Agent to Parent upon demand, Parent and any holders of Company Share Certificates who have not theretofore surrendered their Company Share Certificates in accordance with this Section 1.7 shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely only to Parent for satisfaction of their claims for Merger Consideration, without any interest thereon.
(d) Each of the Paying Agent, Parent and the Surviving Company shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any holder or former holder of Company Ordinary Shares, Company Founder Shares or Company Options such amounts as Parent reasonably determines is required to which such holder may be duededucted or withheld therefrom or in connection therewith under the Code, subject to applicable law. Notwithstanding under the Israeli Income Tax Ordinance New Version, 1961, as amended, or under any provision of U.S. state or local or non-U.S. Tax law or under any other provisions of applicable Legal Requirement, provided that, with respect to any withholding under Israeli Legal Requirements, the Paying Agent, Parent and the Surviving Company shall act in accordance with the Israeli Tax Rulings, if obtained. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement, any portion of Agreement as having been paid to the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior Person to such time as whom such amounts would otherwise escheat tohave been paid.
(e) None of the Paying Agent, Parent or become the Surviving Company shall be liable to any holder or former holder of Company Ordinary Shares, Company Founder Shares or to any other Person with respect to any Merger Consideration delivered to any public official pursuant to any applicable abandoned property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims escheat law or interest of any person previously entitled theretosimilar Legal Requirement.
Appears in 1 contract
Samples: Merger Agreement (Sun Pharmaceutical Industries LTD)
Exchange of Certificates. (a) Parent As soon as practicable after the Effective Date, Sierra shall authorize make available, and each Shareholder will be entitled to receive, upon surrender to Sierra of one or more Persons reasonably acceptable to the certificates representing Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates Common Stock for cancellation, together with a properly completed letter certificates representing the number of transmittal (which shall specify shares of Sierra Common Stock that delivery such Shareholder is entitled to receive pursuant to Section 1.6.1 hereof; provided, however, that the certificates representing the Holdback Shares shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and retained by Sierra in accordance with the instructions thereon, the holder this Agreement. The shares of such Certificates Sierra Common Stock that each Shareholder shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. No interest shall accrue on the Merger Consideration. If the Merger Consideration (or any portion thereof) is to be delivered to any person other than the person in whose name the certificate or certificates representing Parent Shares are to be issued shares of Company Common Stock surrendered in a name other than that in which the Certificate surrendered exchange therefor is registered, it shall be a condition of to such exchange that the Person person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent Sierra any transfer or other taxes required by reason of the issuance payment of the Merger Consideration to a certificate representing Parent Shares in a name person other than that of the registered holder of the Certificate certificate or certificates so surrendered, or shall establish to the satisfaction of the Exchange Agent Sierra that such tax has been paid or is not applicable. Beginning on Notwithstanding the date which is twelve months following the Closing Dateforegoing, Parent neither Sierra nor any other party hereto shall act as the Exchange Agent and thereafter any be liable to a holder of an unsurrendered Certificate shall look solely to Parent shares of Company Common Stock for any amounts Merger Consideration delivered to which such holder may be due, subject a public official pursuant to applicable law. Notwithstanding any other provisions of this Agreementabandoned property, any portion of the Merger Consideration remaining unclaimed five years escheat and similar laws.
(b) As soon as practicable after the Effective Time (or Date, Sierra shall make available to each holder of a Stock Option a replacement stock option letter agreement setting forth such earlier date immediately prior holder's rights to such time purchase Sierra Common Stock as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, determined under this Agreement. Sierra shall take all corporate action necessary to reserve for issuance a sufficient number of shares of Sierra Common Stock as may be issuable pursuant to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoStock Options in accordance with this Section 1.6.
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Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective TimeDate of the Merger, upon receipt each holder of Certificates an outstanding certificate representing Panache Common Stock (excluding holders of certificates who perfect their dissenters' rights of appraisal as provided in Section 3.3 of this Agreement) may, at such holder's option, surrender the same for cancellation, together with a properly completed letter of transmittal cancellation to such entity as the Surviving Corporation so designates as exchange agent (which shall specify that delivery shall be effectedthe "Exchange Agent"), and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that number the Merger Consideration. Until so surrendered, each outstanding certificate theretofore representing Panache Common Stock shall be deemed for all purposes to represent the Merger Consideration and the associated rights.
(b) The registered owners of whole Panache Common Stock on the books and records of Panache immediately prior to the Effective Date of the Merger (excluding registered owners who perfect their dissenters' rights of appraisal as provided in Section 3.3 of this Agreement) shall be the registered owners of Company Common Stock on the books and records of Company immediately after the Effective Date of the Merger, and the holders of shares of Parent Panache Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered Stock, until such certificates shall have been converted surrendered for transfer or conversion or otherwise accounted for by the Surviving Corporation, shall be entitled to exercise any voting and other rights with respect to, and receive dividends and other distributions upon, the shares of Company Common Stock that the holders of Panache Common Stock would be entitled to receive pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amountsMerger.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Each certificate representing Company Shares shall be converted Common Stock so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Time. restrictions on transfer that appeared on the certificates representing Panache Common Stock so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws.
(d) If any certificates certificate representing Parent Shares are shares of Company Common Stock is to be issued in a name other than that the name in which the Certificate certificate surrendered in exchange therefor is registered, it the following conditions must be satisfied before the issuance thereof: (i) the certificate so surrendered shall be a condition of properly endorsed and otherwise in proper form for transfer; (ii) such exchange that transfer shall otherwise be proper; and (iii) the Person person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that the name of the registered holder of the Certificate surrendered, certificate surrendered or shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable After the Effective Date of the Merger, each holder of an outstanding certificate representing shares of Company Common Stock may be asked to surrender the Company same for cancellation to act as Exchange Agent hereunder an exchange agent, whose name will be delivered to holders prior to any requested exchange (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) therefore a certificate or certificates representing that the number of whole shares of Parent Common Stock, into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of Company Common Stock shall be deemed for all purposes to represent the number of shares of Parent Common Stock, into which such shares of Company Common Stock were converted in the Merger.
(b) The registered owner on the books and records of Parent or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to Parent or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amountsoutstanding certificate as provided above.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Each certificate representing Parent Shares into which Company Shares shall be converted Common Stock so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Time. restrictions on transferability as the certificates of Company so converted and given in exchange therefore, unless otherwise determined by the Board of Directors of Parent in compliance with applicable laws.
(d) If any certificates representing certificate for shares of Parent Shares are Common Stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefore is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Parent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable Upon the surrender to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders Surviving ------------------------ Corporation of each certificate representing shares of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonCommon Stock, the holder of such Certificates certificate shall be entitled to receive in exchange therefor (i) a certificate representing that the applicable number of whole shares (or applicable fraction of a share) of Parent Common Stock into which Stock, and the applicable number of shares (or applicable fraction of a share) of Parent Series B Preferred Stock, set forth on Exhibit 4 hereto, and such surrendered certificate shall thereafter be marked as canceled.
(b) Upon the surrender to the Surviving Corporation of each certificate representing shares of Company Shares theretofore represented by Preferred Stock, the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount holder of any cash due pursuant to Section 1.5. No interest such certificate shall be paid entitled to receive in exchange therefor the applicable number of shares (or applicable fraction of a share) of Parent Common Stock, and the applicable number of shares (or applicable fraction of a share) of Parent Series B Preferred Stock, set forth on Exhibit 4 hereto, and such surrendered certificate shall accrue on any such amountsthereafter be marked as canceled.
(c) Until If any consideration is to be paid to a person other than the person in whose name the certificate surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered exchange therefor is registered, it shall be a condition of to such exchange that the Person person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent Surviving Corporation any transfer or other taxes required by reason of the issuance payment of such consideration to a certificate representing Parent Shares in a name person other than that of the registered holder of the Certificate certificate so surrendered, or such person shall establish to the reasonable satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning .
(d) At the close of business on the date which is twelve months following day of the Closing DateEffective Time, Parent the stock transfer books of the Company shall act as the Exchange Agent be closed and thereafter there shall be no transfers of any holder shares of an unsurrendered Certificate Company Stock. If, after the Effective Time, certificates previously representing Company Stock are presented to the Surviving Corporation, they shall look solely to Parent be canceled and exchanged for any amounts to which such holder may be duethe applicable merger consideration, as provided in this Article II, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion Section 262 of the Merger Consideration remaining unclaimed five years after DGCL with respect to appraisal rights.
(e) The Company shall request each holder of Company Common Stock or Company Preferred Stock to tender all certificates representing shares of Company Common Stock or Company Preferred Stock held by such holder, and concurrently with the Effective Time (or Merger, all such earlier date immediately prior to such time certificates shall be marked as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, canceled and surrendered to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoSurviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Superior Trucks & Auto Supply Inc)
Exchange of Certificates. (a) Parent shall authorize one The Company has mailed or more Persons reasonably acceptable otherwise delivered to each record holder of any Certificates a form of letter of transmittal for return to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify specifies that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange AgentCompany) and instructions for use in effecting the surrender of the Certificates and payment therefor. At any time on or after the Effective Time, upon surrender to the Surviving Corporation of any Certificates (other requested documents and in accordance than Certificates representing Dissenting Shares), together with the instructions thereonsuch duly executed letter of transmittal, the holder of each such Certificates Certificate shall receive from Parent immediately thereafter in exchange for each share of Common Stock or Preferred Stock, as applicable, evidenced thereby, the Closing Payment to which such holder is entitled pursuant to Section 2.8, without interest. Each Certificate surrendered pursuant to this Section 2.10(a) shall be entitled canceled. If payment or delivery is to receive be made to a Person other than the Person in exchange therefor (i) whose name a certificate representing Certificate so surrendered is registered, it shall be a condition of payment that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates Certificate so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check be properly endorsed or otherwise in proper form for transfer, that the amount of signatures on the certificate or any cash due pursuant to Section 1.5. No interest related stock power shall be properly guaranteed and that the Person requesting such payment 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 satisfaction of Parent that such Tax has been paid or shall accrue on any such amounts.
(c) is not applicable. Until surrendered in accordance with the provisions of this Section 1.82.10, each Certificate (other than Certificates canceled pursuant to Section 2.8(c) and Certificates representing Dissenting Shares) shall represent for all purposes only the right to receive the Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at form provided for by this Agreement, without interest. Except as provided herein, all cash paid upon surrender of the Effective Time Certificates in accordance with this Section 2.10 shall be deemed to have been issued at paid in satisfaction of all rights pertaining to the Effective Time. If shares of Common Stock or Preferred Stock represented thereby.
(b) In the event that any certificates representing Parent Shares are to be issued in a name Certificate (other than any Certificate representing Dissenting Shares) shall have been lost, stolen or destroyed, upon the making of an affidavit of that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required fact by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of such lost, stolen or destroyed Certificate in form and substance acceptable to Parent (if such affidavit is accepted before the Certificate surrendered, Effective Time) or establish to the satisfaction of Surviving Corporation (if such affidavit is accepted after the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing DateEffective Time), Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered will issue in exchange for such lost, stolen or destroyed Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five in respect thereof in the manner set forth in Section 2.8.
(c) If Certificates are not surrendered prior to the date that is three (3) years after the Effective Time Time, unclaimed amounts (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entityincluding interest thereon) of Merger Consideration shall, to the extent permitted by applicable law, become the property of Parent the Surviving Corporation and may be commingled with the general funds of the Surviving Corporation, free and clear of any all claims or interest interest. Notwithstanding the foregoing, any stockholders of any person previously entitled theretothe Company who have not theretofore complied with the provisions of this Section 2.10(c) shall thereafter look only to the Surviving Corporation and only as general creditors thereof for payment for their claims in the form and amounts to which such stockholders are entitled.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of the shares of Common Stock or Preferred Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates (other than Certificates representing Dissenting Shares) are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration, as applicable, as provided for, and in accordance with, the provisions of this Section 2.10.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, each holder of an outstanding certificate immediately prior to the Effective Time represented shares of Company Common Stock (the "Company Certificates") shall cease to have any right as a stockholder of the Company and such holder's sole rights shall be to receive in exchange for such holder's Company Certificates, upon surrender thereof to an exchange agent selected by Parent (the "Exchange Agent"), a certificate or certificates representing the number of whole shares of Parent Common Stock which such holder is entitled to receive pursuant to Section 3.1(a) plus cash in lieu of fractional shares, as provided in Section 3.1(b) hereof. Notwithstanding any other provision of this Agreement, (i) until holders of Company Certificates theretofore representing shares of Company Common Stock have surrendered such certificates for exchange as provided herein, (A) no dividends shall be paid by the Parent with respect to any shares represented by such Company Certificates and (B) no payment for fractional shares shall be made, provided, in each case, that upon surrender of such Company Certificates, the surrendering holder shall receive all such dividends and payments for fractional shares and (ii) without regard to when such Company Certificates are surrendered for exchange as provided herein, no interest shall be paid on any such dividend or payment for fractional shares. If any certificate for shares of Parent Common Stock is to be issued in a name other than that in which the certificate for shares of Company Common Stock surrendered in exchange therefor is registered, it shall be a condition of such exchange that the person requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of certificates for such shares of Parent Common Stock in a name other than that of the registered holder of the certificate surrendered, or shall establish to the satisfaction of Parent that such tax has been paid or is not applicable. No transfers of Company Common Stock shall be made on the stock transfer books of the Company after the close of business on the day prior to the date of the Effective Time.
(b) At or before the Effective Time, Parent shall authorize one or more Persons reasonably acceptable make available to the Company to act as Exchange Agent hereunder a sufficient number of certificates representing shares of Parent Common Stock required to effect the exchange referred to in Section 3.2(a).
(the “Exchange Agent”). c) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, mail to former each holder of record holders of the Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(bi) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Company Certificates shall pass, only upon actual delivery of the Company Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of the Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other requested documents and in accordance with as the instructions thereonExchange Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor (i) a certificate one or more certificates representing that number of whole shares of Parent Common Stock into which the shares of Company Shares Common Stock theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.83.1(a), each Certificate in addition to payment for any fractional share or dividend of Parent Common Stock, and the Company Certificates so surrendered shall forthwith be cancelled. Until so surrendered, the Company Certificates shall represent for all purposes only solely the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. the number of whole shares of Parent Shares into which Company Shares Common Stock that shall be converted issued in exchange for Company Common Stock, the payment of any related dividends as contemplated by Section 3.2(a), and any cash in lieu of the fractional Parent Common Stock as contemplated by Section 3.1(b). Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of shares of Company Common Stock for any shares of Parent Common Stock delivered to a public official as required by applicable abandoned property, escheat or similar laws. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to Parent Common Stock held by it from time to time hereunder.
(d) From and after the Effective Time, Parent shall be entitled to treat outstanding certificates which immediately prior to the Effective Time represented shares of Subsidiary Common Stock as evidencing the ownership of the number of full shares of Surviving Corporation Common Stock, which the holder of the shares of Subsidiary Common Stock represented by such certificates is entitled to receive pursuant to Section 3.1(c), and the holder of such certificates shall not be required to surrender such certificates for exchange. Shares of Surviving Corporation Common Stock which the holder of shares of Subsidiary Common Stock is entitled to receive in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable Prior to the Company Effective Time, Purchaser shall designate a bank or trust company, reasonably satisfactory to the Company, to act as Exchange Agent hereunder agent (the “Exchange Agent”"PAYING AGENT") for the holders of Shares to receive the funds and certificates necessary to effect the exchange for the Merger Consideration of certificates which, immediately prior to the Effective Time, represented Shares entitled to payment pursuant to Section 2.5(a), 2.5(b) or 2.5(c). Promptly As soon as practicable after the Effective Time, Parent the Surviving Corporation shall cause the Exchange Paying Agent to mail, to former record holders of Company Shares who have not previously submitted letters of mail a transmittal together with Certificates, instructions for surrendering their Certificates in exchange for form (the Merger Consideration.
(b"LETTER OF TRANSMITTAL") Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates certificates theretofore representing such Shares shall pass, only upon proper delivery to the Paying Agent) to each holder of record of certificates theretofore representing such Shares advising such holder of the Certificates procedure for surrendering to the Exchange Agent) and other requested documents and in accordance with Paying Agent such certificates for payment of the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Timerespect thereof. If any certificates representing certificate of Parent Shares are Stock is to be issued in the name of, or if cash is to be remitted to, a name person other than that the person in which whose name the Certificate certificates for Shares surrendered is registeredfor exchange are registered on the books of the Company, it shall be a condition of such the exchange that the Person certificate so surrendered shall be properly endorsed and the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Paying Agent any all transfer or other taxes required by reason of the issuance of such check in the name of a certificate representing Parent Shares in a name person other than that the registered owner of the registered holder of the Certificate certificates surrendered, or shall establish to the satisfaction of the Exchange Paying Agent that such tax has taxes have been paid or is are not applicable. Beginning on Notwithstanding the date which is twelve months following foregoing, neither the Closing Date, Parent Paying Agent nor any party hereto shall act as the Exchange Agent and thereafter any be liable to a holder of an unsurrendered Certificate shall look solely to Parent certificates theretofore representing Shares for any amounts amount paid to a public official pursuant to any applicable abandoned property, escheat or similar laws. Upon the surrender and exchange of a certificate theretofore representing Shares, together with such Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder shall be entitled to receive a certificate for the number of full shares of Parent Stock and the amount of cash, if any, without interest thereon, to which he or she is entitled hereunder, less only such amount required to be withheld under applicable backup withholding federal income tax regulations, and such certificate shall forthwith be cancelled. Until so surrendered and exchanged, each such certificate shall represent solely the right to receive the Merger Consideration into which the Shares it theretofore represented shall have been converted pursuant to Sections 2.5(a), 2.5(b) or 2.5(c), without interest, and the Surviving Corporation shall not be required to pay the holder thereof the Merger Consideration to which such holder may otherwise would be due, subject entitled; provided that customary and appropriate certifications and indemnities allowing for payment against lost or destroyed certificates shall be permitted. If any certificates representing any Shares shall not have been surrendered prior to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts earlier date on which any payment in respect thereof would otherwise escheat to, to or become the property ofof any governmental unit or agency), any Governmental Entity) the payment in respect of such certificates shall, to the extent permitted by applicable law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any person previously entitled thereto.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one At or more Persons reasonably acceptable prior to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, ------------------------ Parent shall cause reserve for exchange in accordance with this Article II, the Exchange Agent aggregate number of shares of Parent Common Stock issuable pursuant to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates Section 2.02 in exchange for outstanding shares of Company Common Stock. At the Closing, Company and the Principal Stockholders shall cause each Stockholder that does not perfect its appraisal rights and is otherwise entitled to receive shares of Parent Common Stock and cash pursuant to Section 2.02 (a "Merger Consideration.
Stockholder") ------------------ to surrender to Parent all certificates representing shares of Company Common Stock (b) Promptly after properly endorsed for transfer and with all necessary transfer tax and other revenue stamps affixed and cancelled). No later than the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the each Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) Stockholder a certificate representing that the number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any that such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only Merger Stockholder has the right to receive Merger Consideration andpursuant to the provisions of Section 2.02. If any Company Stock Certificate shall have been lost, if applicablestolen or destroyed, amounts under Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and indemnity agreement against any claim that may be made against Parent or the Surviving Company with respect to such Company Stock Certificate. At and after the Effective Time, each Company Stock Certificate shall, for all purposes, be deemed to evidence ownership of the number of shares of Parent Common Stock determined in accordance with Section 1.122.02 until such Company Stock Certificate has been surrendered by the holder thereof and replaced by a certificate or certificates representing Parent Common Stock. All shares of Parent Shares into which Company Shares shall be converted Common Stock issuable to the Stockholders in the Merger at the Effective Time shall be deemed for all purposes to have been issued by Parent at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (DTVN Holdings Inc)
Exchange of Certificates. (a) Parent Each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Stock shall authorize one or more Persons reasonably acceptable surrender to the Company the certificate or certificates representing such shares of Company Stock and, upon acceptance thereof by the Company prior to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause be entitled to the Exchange Agent Initial Price Per Share in cash at the Effective Time and, if applicable in accordance with the terms of this Agreement, the amounts payable pursuant to mailSection 2.12 and Article IX in cash to be paid as soon as practicable. After the Effective Time, to former record holders each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Shares who Stock shall surrender to the Surviving Corporation the certificate or certificates representing such shares of Company Stock and, upon acceptance thereof by the Surviving Corporation, be entitled to the Initial Price Per Share and, if applicable in accordance with the terms of this Agreement, the amounts payable pursuant to Section 2.12 and Article IX in cash to be paid as soon as practicable. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Stock which have not previously submitted letters been converted, in whole or in part, pursuant to this Agreement into the right to receive cash and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of transmittal together with Certificatescash. Until surrendered as contemplated by this Section 2.13, instructions each certificate for surrendering their Certificates in exchange for shares of Company Stock shall be deemed at any time after the Merger Effective Time to represent only the right to receive upon such surrender the Per Share Stock Consideration as contemplated by Section 2.8(b). No interest will be paid or will accrue on any amounts payable as Per Share Stock Consideration.
(b) Promptly No dividends or other distributions with respect to Company Stock with a record date after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery Time shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates paid to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a any unsurrendered certificate representing that number of whole for shares of Parent Common Company Stock into which with respect to the shares of Company Shares theretofore Stock represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amountsthereby.
(c) Until Neither Purchaser nor the Company shall be liable to any Person in respect of any shares of retained Company Stock (or dividends or distributions with respect thereto) or the Per Share Stock Consideration required to be delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(d) If any consideration is to be paid to a Person other than the Person in whose name the certificate or Option surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered exchange therefor is registered, it shall be a condition of to such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent Surviving Corporation any transfer Transfer Taxes or other taxes Taxes required by reason of the issuance payment of such consideration to a certificate representing Parent Shares in a name Person other than that of the registered holder of the Certificate certificate or Option so surrendered, or such person shall establish to the reasonable satisfaction of the Exchange Agent Surviving Corporation that such tax Tax has been paid or is not applicable. Beginning on .
(e) If any certificate for shares of Company Stock shall have been lost, stolen or destroyed, upon the date which is twelve months following making of an affidavit of that fact by the Closing DatePerson claiming such certificate to be lost, Parent shall stolen or destroyed the Surviving Corporation will pay, in exchange for such lost, stolen or destroyed certificate, the Per Share Stock Consideration to be paid in respect of the shares of Company Stock represented by such certificate.
(f) Purchaser may, at its option, meet its obligations under this Section 2.13 through a bank, trust company or other third party reasonably selected by Purchaser to act as exchange agent in connection with the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoMerger.
Appears in 1 contract
Samples: Merger Agreement (Clorox Co /De/)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable After the Effective Date of the Merger, each holder of an outstanding certificate representing SonomaWest California Common Stock may, at such holder’s option, surrender the same for cancellation to the Company to act Continental Stock Transfer & Trust Company, as Exchange Agent hereunder exchange agent (the “Exchange AgentExchangeAgent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent the Surviving Corporation’s Common Stock into which the Company Shares surrendered shares were converted as provided herein. Unless and until so surrendered, each outstanding certificate theretofore representing shares of SonomaWest California Common Stock shall be deemed for all purposes to represent the number of shares of the Surviving Corporation’s Common Stock into which such shares of SonomaWest California Common Stock were converted in the Merger.
(b) The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any shares of stock represented by the Certificates so surrendered such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 the Surviving Corporation or the Exchange Agent, have and (ii) a check in be entitled to exercise any voting and other rights with respect to, and to receive dividends and other distributions upon the amount shares of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any Common Stock of the Surviving Corporation represented by, such amountsoutstanding certificate as provided above.
(c) Until surrendered in accordance with Each certificate representing Common Stock of the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Time. restrictions on transferability as the certificates of SonomaWest California so converted and given in exchange therefore, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws, or other such additional legends as agreed upon by the holder and the Surviving Corporation.
(d) If any certificates representing Parent Shares are certificate for shares of the Surviving Corporation stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof: (i) that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer; (ii) that such transfer otherwise be proper and comply with applicable securities laws; and (iii) that the person requesting such exchange deliver transfer pay to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to Surviving Corporation or the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Effective Time, the Parent shall authorize one enter into an agreement, effective no later than the Effective Time, with such bank or more Persons trust company in the United States reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”"PAYING AGENT"). Promptly , which shall provide that the Parent shall from time to time after the Effective Time, cause the Surviving Corporation to make available to the Paying Agent funds in amounts and at the times necessary for the payment of Merger Consideration pursuant to Section 2.1(c) upon surrender of Certificates, it being understood that any and all interest earned on funds made available to the Paying Agent pursuant to this Agreement shall be turned over to the Parent. Parent shall take all steps necessary to enable and cause the Exchange Surviving Corporation to provide to the Paying Agent on a timely basis, as and when needed after the Effective Time, cash necessary to mail, to former record holders pay for the shares of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for Common Stock converted into the Merger Considerationright to receive cash pursuant to Section 2.1.
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent but in no event later than five Business Days thereafter, the Paying Agent shall deliver mail to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt each holder of Certificates for cancellation, together with record of a properly completed Certificate (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon delivery of the Certificates to the Exchange AgentPaying Agent and shall be in such form and have such other provisions as the Parent and the Company may reasonably specify) and (ii) instructions for use in surrendering Certificates in exchange for Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent, together with such letter of transmittal, duly executed, and such other requested documents and in accordance with as may reasonably be required by the instructions thereonPaying Agent, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number the amount of whole shares of Parent Common Stock cash into which the Company Shares theretofore shares formerly represented by the Certificates so surrendered such Certificate shall have been converted pursuant to Section 1.5 2.1(c), and (ii) the Certificate so surrendered shall be canceled. If a check transfer of ownership of shares of Company Common Stock has not been registered in the amount transfer records of any cash due pursuant the Company, payment may be made to Section 1.5. No interest a Person other than the Person in whose name the Certificate so surrendered is registered if such Certificate shall be paid properly endorsed or shall accrue on any such amounts.
(c) Until surrendered otherwise be in accordance with the provisions of this Section 1.8, each Certificate shall represent proper form for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that transfer and the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and issuance shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the issuance of payment to a certificate representing Parent Shares in a name Person other than that of the registered holder of the such Certificate surrendered, or establish to the satisfaction of the Exchange Agent Parent that such tax Tax has been paid or is not applicable. Beginning No interest shall be paid or will accrue on the date which is twelve months following cash payable to holders of Certificates pursuant to the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this AgreementArticle 2.
(c) All cash paid upon the surrender of Certificates in accordance with the terms of this Article 2 shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock theretofore represented by such Certificates, subject, however, to the Surviving Corporation's obligation to pay any portion dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock which remain unpaid at the Effective Time, and there shall be no further registration of transfers on the stock transfer books of the Merger Consideration remaining unclaimed five years Surviving Corporation of the shares of Company Common Stock which were outstanding immediately prior to close of business on the day the Effective Time occurs. If, after the Effective Time Time, Certificates are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be canceled and exchanged as provided in this Article 2, except as otherwise provided by law.
(d) None of the Parent, the Purchaser, the Company or such earlier date the Paying 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 Certificate shall not have been surrendered immediately prior to such time as such the date on which any amounts payable pursuant to this Article 2 would otherwise escheat to, to or become the property of, of any Governmental Entity) , any such amounts shall, to the extent permitted by applicable law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any person Person previously entitled thereto.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Parent, the posting by such Person of a bond in such reasonable amount as the Parent may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration with respect thereto.
(f) The Parent, the Purchaser or the Paying Agent shall be entitled to deduct and withhold from amounts otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as the Parent, the Purchaser or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986 (the "CODE"), or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by the Parent, the Purchaser 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 Parent, the Purchaser or the Paying Agent.
Appears in 1 contract
Samples: Merger Agreement (Firepond Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, each holder of an outstanding certificate or certificates theretofore representing Outstanding LADCO Shares upon receipt of Certificates for cancellationsurrender thereof, together with a properly completed letter of transmittal transmittal, to Xxxxxx Xxxxxxx (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the "Exchange Agent) and other requested documents and in accordance with the instructions thereon"), the holder of such Certificates as exchange agent for PMT, shall be entitled to receive in exchange therefor (i) any payment due in lieu of fractional shares and a certificate or certificates representing that the number of whole shares of Parent PMT Common Stock into which such holders' Outstanding LADCO Shares were converted in a manner reasonably satisfactory to LADCO. Until so surrendered, each outstanding certificate representing Outstanding LADCO Shares shall be deemed for all purposes to represent the number of whole shares of PMT Common Stock into which the Company Outstanding LADCO Shares theretofore represented by shall have been converted. PMT may, at its option, refuse to pay any dividend or other distribution, if any, payable to the Certificates so holders of shares of PMT Common Stock to the holders of certificates representing Outstanding LADCO Shares until such certificates are surrendered for exchange, provided, however, that, subject to the rights of PMT under its charter, upon surrender and exchange of such LADCO certificates there shall be paid to the record holders of the PMT stock certificate or certificates issued in exchange therefor the amount, without interest, of dividends and other distributions, if any, which have become payable with respect to the number of whole shares of PMT Common Stock into which the Outstanding LADCO Shares theretofore represented thereby shall have been converted pursuant and which have not previously been paid. Under the terms of its credit agreements, PMT has agreed not to Section 1.5 and (ii) a check in the amount of pay any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amountsdividends.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one At or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly soon as practicable after the Effective Time, Parent shall cause BankBoston N.A. or its designee (the Exchange Agent "Disbursement Agent") will send to mail, to former record the holders of Company Shares who have not previously submitted letters Stock Certificates: (i) a letter of transmittal together with Certificates, in customary form and containing such provisions as Parent may reasonably specify and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver . Upon surrender of a Company Stock Certificate to the Exchange Disbursement Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk of loss of, and title to, reasonably required by Parent or the Certificates shall pass, only upon delivery of the Certificates to the Exchange Disbursement Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate representing the Merger Consideration that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only holder has the right to receive Merger Consideration andpursuant to the provisions of Section 1.5 above, if applicable, amounts under Section 1.12. Parent Shares into which and the Company Shares Stock Certificate so surrendered shall be converted in canceled. No interest will be paid or accrued on the Merger at cash payable upon the Effective Time shall be deemed to have been issued at surrender of the Effective TimeCompany Stock Certificates. If any certificates representing Parent Shares are payment is to be issued in made to a name person other than that the person in which whose name the Company Stock Certificate surrendered is registered, it shall be a condition of such exchange payment that the Person Company Stock Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and payment pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of payment to a certificate representing Parent Shares in a name person other than that of the registered holder of the Company Stock Certificate surrendered, surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender the Merger Consideration as contemplated by this Section 1. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery of the Merger Consideration, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate. As of the Effective Time, the Company shall deposit with the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) the total amount of the Deposit. (The Company shall be entitled to all interest and other amounts earned on the date which is twelve months following Deposit and such amounts shall not be applied to the Closing DateAggregate Merger Consideration.) As of the Effective Time, Parent shall act deposit with the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) the total amount of the Initial Merger Consideration plus the BFC Net Proceeds (subject to any applicable reserves) plus the Option Exercise Proceeds plus the Contingent Asset Distribution Amount at the Effective Time (subject to any applicable reserves) plus the Unrestricted Cash minus the Company Transaction Expenses and minus the Option Cancellation Amount, net of the Deposit and net of any amount deposited for use by the Shareholders' Representative pursuant to Section 4.10(b) (such amount, being hereinafter referred to as the Exchange "Disbursement Fund"). The Disbursement Fund shall be distributed pursuant to an agreement by and among Parent and the Disbursement Agent in a form reasonably satisfactory to the Company (the "Disbursement Agent Agreement").
(b) Parent and thereafter the Surviving Corporation (or the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) on their behalf) shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion capital stock of the Merger Consideration remaining unclaimed five years Company pursuant to this Agreement such amounts as Parent or the Surviving Corporation reasonably determine are required to be deducted or withheld therefrom under the Internal Revenue Code (the "Code") or under any provision of state, local or foreign tax law (or, in the alternative, Parent or the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent), at Parent's option, may request tax information and other documentation establishing that no withholding is necessary). To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) If any Company Stock Certificates shall not have been surrendered prior to thirteen (13) months after the Effective Time (or such earlier date immediately prior to such time as such amounts on which any payment in respect hereof would otherwise escheat to, or become the property ofof any governmental unit or agency), any Governmental Entity) the payment in respect of such Company Stock Certificates shall, to the extent permitted by applicable law, become the property of Parent the Surviving Corporation (except as provided in subsection 1.8(e) below), free and clear of any all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of capital stock of the Company for any cash amounts, delivered to any public official pursuant to any applicable abandoned property, escheat or similar law.
(d) Any portion of the Disbursement Fund held by the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) pursuant to this Section 1.8 which remains undistributed to the stockholders of the Company thirteen (13) months after the Effective Time shall be delivered to Surviving Corporation (except as provided in subsection 1.8(e) below), and any stockholders of the Company who have not theretofore complied with this Section 1 shall thereafter look only to Surviving Corporation, and only as general creditors thereof, for payment of their claim for the Merger Consideration to which such stockholders may be entitled.
(e) The Merger Consideration with respect to all Company Stock Certificates issued pursuant to the Trustee's Amended Chapter 11 Plan for the Estate of Bonneville Pacific Corporation dated April 22, 1998" (the "Bankruptcy Plan") which are forfeited pursuant to Section 5.9 of the Bankruptcy Plan (the "Forfeited Plan Shares") shall be distributed as follows: (i)first, the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) shall distribute to Parent an amount equal to the Taxes owed, if any, by the Surviving Corporation as a result of the forfeiture of such Forfeited Plan Shares (provided that for this purpose, Taxes shall be calculated taking into account only items of income, gain, loss, deduction or credit relating to such forfeiture and as if no net operating losses of the Acquired Companies or Parent and any of its Subsidiaries were available to offset any income recognized as a result of such forfeiture), such amount to be calculated by Parent or the Surviving Company and set forth in a notice to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent), and (ii) second, any amounts remaining after the distribution described in clause (i) of this subsection (e) shall be distributed to the holders of Converted Shares (subject to the restrictions herein), pro rata, based on the number of shares or share equivalents each holder surrendered. The portion of the Disbursement Fund described in clause (ii) of the preceding sentence held by the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) pursuant to this Section 1.8 on account of the Forfeited Plan Shares shall be delivered by the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) between thirteen and fourteen months after the Effective Time to the stockholders of the Company who have surrendered their Company Stock Certificates to the Disbursement Agent in accordance with Section 1.8(a), pro rata, based on the number of shares of Company Common Stock or share equivalents each stockholder surrendered.
(f) All cash received by the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) from the Surviving Corporation on account of Contingent Assets pursuant to Section 1.5(d), together with any interest earned thereon after delivery of such cash to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent), shall be delivered to the holders of Converted Shares who have surrendered their Company Stock Certificates to the Disbursement Agent in accordance with Section 1.8(a), pro rata, based on the number of shares of Company Common Stock or share equivalents each holder surrendered.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable Prior to the Company Effective Time, Parent will designate the Paying Agent and from time to act as Exchange time will make or cause to be made available to the Paying Agent funds in the amounts and at the times necessary for the payment of the Merger Consideration on surrender of Certificates. Any and all interest earned on funds made available to the Paying Agent hereunder will belong to and be turned over to Parent.
(the “Exchange Agent”). Promptly b) As soon as reasonably practicable after the Effective Time, the Paying Agent will mail to each holder of record of a Certificate:
(1) a letter of transmittal, which will specify that delivery will be effected, and risk of loss and title to Certificates will pass, only on delivery of Certificates to the Paying Agent and will be in a form and have such other provisions as Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, may specify; and
(2) instructions for surrendering their use in effecting the surrender of Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver . On surrender of a Certificate for cancellation to the Exchange Paying Agent sufficient or to such other agent or agents as Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationmay appoint, together with a properly completed that letter of transmittal (which shall specify that delivery shall be effectedtransmittal, duly executed, and risk of loss of, and title to, such other documents as the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonPaying Agent reasonably may require, the holder of such Certificates shall that Certificate will be entitled to receive in exchange therefor (i) a certificate representing for each Share that number of whole shares of Parent Common Stock into which the Company Shares theretofore Certificate formerly represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant equal to Section 1.5the Merger Consideration, and that Certificate forthwith will be cancelled. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with In the provisions event of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent a transfer of ownership of Converted Shares into which Company Shares shall be converted is not registered in the Merger at transfer records of the Effective Time shall Company, payment may be deemed made to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name Person other than that the Person in which whose name the Certificate so surrendered is registered, it shall be a condition of such exchange if that Certificate is properly endorsed or otherwise in proper form for transfer and the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent that payment:
(1) pays any transfer or other taxes required by reason of Taxes the issuance of payment to a certificate representing Parent Shares in a name Person other than that of the registered holder of the that Certificate surrendered, or establish necessitates; or
(2) establishes to the satisfaction of the Exchange Agent Surviving Corporation that such tax the Tax has been paid or is not applicable. Beginning No interest will accrue or become payable on the date which is twelve months following cash payable on the Closing Date, Parent shall act as surrender of any Certificate.
(c) All cash paid on the Exchange Agent and thereafter any holder surrender of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions Certificates in accordance with the terms of this AgreementArticle Three will be deemed to have been paid in full satisfaction of all rights pertaining to the Converted Shares those Certificates theretofore represented. At the Effective Time, any portion the stock transfer books of the Merger Consideration remaining unclaimed five years Company will close, and there will be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Converted Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat toTime, or become property of, any Governmental Entity) shall, Certificates are presented to the extent permitted by lawSurviving Corporation or the Paying Agent for any reason, become they will be cancelled and exchanged as this Article Three provides.
(d) None of Parent, the property of Parent free and clear Surviving Corporation or the Paying Agent will be liable to any Person in respect of any claims cash delivered to a public official under any applicable abandoned property, escheat or interest of any person previously entitled thereto.similar law. ARTICLE FOUR
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one Prior to receiving any portion of the Closing Consideration, each holder of record of a certificate or more Persons reasonably acceptable certificates that immediately prior to the Effective Time represented issued and outstanding shares of Company to act as Exchange Agent hereunder Stock (the “Exchange AgentCertificates”). Promptly after the Effective Time, Parent ) shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver delivered to the Exchange Paying Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with (i) a properly completed and duly executed letter of transmittal in the form of Exhibit 3.8(a) (which a “Letter of Transmittal”) and (ii) the Certificates, if any, held of record by such holder. Such Letter of Transmittal shall specify have been previously delivered by the Paying Agent to such holder at or promptly following the Effective Time along with instructions thereto and a notice to the effect that delivery of the Certificates shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Paying Agent) and other requested documents and in accordance . Upon surrender of a Certificate to the Paying Agent, together with the instructions thereonsuch Letter of Transmittal, duly executed, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock the consideration into which the Company Shares theretofore shares represented by the Certificates so surrendered such Certificate shall have been converted pursuant to Section 1.5 3.6, and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest Certificate so surrendered shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Timecanceled. If any certificates representing Parent Shares are the portion of the Closing Consideration is to be issued in paid to a name Person other than that the Person in which whose name the Certificate so surrendered is registered, it shall be a condition of exchange that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the issuance of exchange to a certificate representing Parent Shares in a name Person other than that of the registered holder of the such Certificate surrendered, or establish to the reasonable satisfaction of the Exchange Agent Company that such tax Tax has been paid or is not applicable. Beginning Until surrendered as contemplated by this Section 3.8, each Certificate shall be deemed as of the Effective Time of the Merger to represent only the right to receive, upon surrender of such Certificate in accordance with this Section 3.8(a), the consideration into which the shares represented by such Certificate shall have been converted pursuant to Section 3.7(a). If any certificate evidencing any share of Common Stock shall have been lost, stolen or destroyed, the Purchaser or the Paying Agent may, in its discretion and as a condition precedent to the issuance of any consideration pursuant to Section 3.6, require the owner of such lost, stolen or destroyed certificate to provide an appropriate affidavit with respect to such certificate.
(b) All Closing Consideration paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been exchanged and paid in full satisfaction of all rights pertaining to the shares represented by such Certificates and there shall be no further registration of transfers on the date which is twelve months stock transfer books of the Surviving Corporation of the shares of Company Stock that were issued and outstanding immediately prior to the Effective Time of the Merger. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged for the portion of the Closing Consideration as provided in this Article III.
(c) At any time following the six (6) month anniversary of the Closing Date, Parent the Purchaser or the Surviving Corporation shall act as be entitled to require the Exchange Paying Agent to deliver to it any funds (including any interest received with respect thereto but excluding for all purposes the Stockholder Representative Reserve) that had been made available to the Paying Agent and thereafter any holder of an unsurrendered Certificate which have not been disbursed to the Holders, and thereafter, such Holders shall be entitled to look solely only to Parent for any amounts to which such holder may be due, the Purchaser or the Surviving Corporation (subject to applicable law. Notwithstanding abandoned property, escheat or other similar laws) as general creditors thereof with respect to the payment of any other provisions Closing Consideration that would otherwise be payable upon surrender of any Certificates held by such Holders, as determined pursuant to this Agreement, without any portion of the Merger Consideration interest thereon. Any amounts remaining unclaimed five years after the Effective Time (or by such earlier date immediately prior to Holders at such time as at which such amounts would otherwise escheat to, to or become property of, of any Governmental Entity) shallEntity shall become, to the extent permitted by lawapplicable Laws, become the property of Parent the Purchaser, free and clear of any all claims or interest interests of any person Person previously entitled thereto.
(d) The Paying Agent, its designee, the Stockholder Representative the Purchaser, Merger Sub, the Company or the Surviving Corporation (as appropriate) shall be entitled to deduct and withhold from consideration otherwise payable pursuant to this Agreement to any Holder such amounts as are required to be deducted and withheld 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, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Holder in respect of which such deduction and withholding was made.
Appears in 1 contract
Samples: Merger Agreement (OMNICELL, Inc)
Exchange of Certificates. (a) Prior to the Closing Date, Parent shall authorize one select a reputable bank or more Persons reasonably acceptable to the Company trust company to act as Exchange Agent hereunder exchange agent in the Merger (the “"Exchange Agent”"). Promptly Within one (1) business day after the Effective Time, Parent shall cause deposit with the Exchange Agent to mailAgent, to former record for the benefit of the holders of Company Shares, (i) certificates representing the shares of Parent Common Stock issuable pursuant to this Section 1, (ii) cash representing the amount of cash payable in respect of the Shares who have not previously submitted letters pursuant to this Section 1, and (iii) cash sufficient to make payments in lieu of transmittal fractional shares in accordance with Section 1.5(c) (such cash and shares of Parent Common Stock, together with Certificatesany dividends or distributions with respect thereto, instructions for surrendering their Certificates in exchange for being referred to as the Merger Consideration"Exchange Fund").
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash will mail to satisfy the Merger Consideration. After the Effective Time, upon receipt record holders of Company Stock Certificates for cancellation, together with (i) a properly completed letter of transmittal in customary form and containing such provisions as Parent and the Company may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected, and risk of loss of, and title to, the to Company Stock Certificates shall pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration. Upon surrender of a Company Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other requested documents and in accordance with as may be reasonably required by the instructions thereonExchange Agent or Parent, (A) the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor the Merger Consideration, and (iB) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall have been converted pursuant to be immediately canceled. Until surrendered as contemplated by this Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest 1.7, each Company Stock Certificate shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with deemed, from and after the provisions of this Section 1.8Effective Time, each Certificate shall to represent for all purposes only the right to receive the Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into and any distribution or dividend the record date for which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at is after the Effective Time. If any certificates Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares are to be issued in a name other than that in which Common Stock or the Certificate surrendered is registeredpayment of any cash portion of the Merger Consideration, it shall be a condition require the owner of such exchange lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Person requesting Exchange Agent, Parent or the Surviving Corporation with respect to such exchange deliver to Company Stock Certificate, and, in such case, the Exchange Agent all documents necessary will issue in exchange for such lost, stolen or destroyed Company Stock Certificates the Merger Consideration.
(c) No dividends or other distributions declared or made with respect to evidence and effect such transfer and pay Parent Common Stock with a record date after the Effective Time shall be paid to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the any unsurrendered Company Stock Certificate surrendered, or establish with respect to the satisfaction shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable escheat or similar Legal Requirements, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Agent Fund that such tax has been paid or is not applicable. Beginning on remains undistributed to holders of Company Stock Certificates as of the date which is twelve months following one hundred eighty (180) days after the Closing DateEffective Time shall be delivered to Parent upon demand, Parent and any holders of Company Stock Certificates who have not theretofore surrendered their Company Stock Certificates in accordance with this Section 1.7 shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely only to Parent for any amounts satisfaction of their claims for the Merger Consideration to which such holder is entitled pursuant hereto.
(e) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be duerequired to be deducted or withheld therefrom under the Code or any provision of state, subject to applicable law. Notwithstanding local or foreign tax law or under any other provisions of applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement, any portion of Agreement as having been paid to the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior Person to such time as whom such amounts would otherwise escheat tohave been paid.
(f) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), or become for any cash amounts, delivered to any public official in compliance with any applicable abandoned property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims escheat law or interest of any person previously entitled theretosimilar Legal Requirement.
Appears in 1 contract
Samples: Merger Agreement (Titan Corp)
Exchange of Certificates. (a) Parent shall authorize one or more Persons As soon as reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly practicable after the Effective Time, Parent Medix and the Surviving Corporation shall mail (or cause the Exchange Agent a designated agent to mail, ) to former each holder of record holders of Units reflected on the books and records of the Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(bi) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which letter shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates certificates representing the Units shall pass, only upon delivery to Medix or an agent designated by Medix a properly executed assignment and letter of transmittal and shall be in such form and have such other provisions as Medix may reasonably specify), and (ii) instructions for use in effecting the assignment of the Certificates Units in exchange for certificates representing shares of Common Stock.
(b) Upon the delivery to Medix or an agent designated by Medix of such assignment and letter of transmittal, duly executed, and such other documents as may reasonably be required by Medix, the holder, subject to the Exchange Agentescrow arrangements provided for in Section 2.3(d) and other requested documents and in accordance with the instructions thereonbelow, the holder of such Certificates shall will be entitled to receive in exchange therefor (i) a certificate certificates representing that the number of whole shares of Parent Common Stock into which to be issued in respect of the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amountsUnits surrendered.
(c) Until surrendered in accordance with No certificate or scrip representing fractional shares of Common Stock shall be issued upon the provisions surrender for exchange of this Section 1.8Units, each Certificate shall represent for all purposes only and such fractional share interests will not entitle the right owner thereof to vote or to any rights as a stockholder of Medix. All fractional shares of Common Stock that a holder of Units would otherwise be entitled to receive as a result of the Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in rounded to the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. nearest whole number of shares.
(d) If any certificates representing Parent Shares are a certificate for Common Stock is to be issued in sent to a name Person other than that the Person in which whose name the Certificate Units surrendered is for exchange are registered, it shall be a condition of such the exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent Medix any transfer or other taxes required by reason of the issuance delivery of such certificate to a certificate representing Parent Shares in a name Person other than that of the registered holder of the Certificate certificate surrendered, or shall establish to the satisfaction of the Exchange Agent Medix that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date"Person" shall mean any individual, Parent shall act as the Exchange Agent and thereafter corporation, partnership (general or limited), limited liability company, limited liability partnership, trust, joint venture, joint-stock company, syndicate, association, entity, unincorporated organization or government or any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be duepolitical subdivision, subject to applicable lawagency or instrumentality thereof. Notwithstanding the foregoing, the shares of Common Stock constituting the Initial Merger Consideration (the "Escrow Shares") shall de deposited into an escrow account (the "Escrow Account") pursuant to an escrow agreement (the "Escrow Agreement"), among Medix, the Representative and the escrow agent (the "Escrow Agent") in form and substance reasonably satisfactory to the parties thereto. The Escrow Agent shall be a bank or trust company with capital and surplus exceeding $500,000,000 reasonably satisfactory to Medix and the Representative. The Escrow Shares shall (i) secure the obligations with respect to any other provisions of adjustments or indemnification obligations under this Agreement, any portion ; (ii) insure compliance with all applicable Law restricting the transfer or distribution of such shares and (iii) provide for the Merger Consideration remaining unclaimed five years after Escrow Shares to be released in accordance with the Effective Time (or terms and conditions set forth in the Escrow Agreement which shall provide for timely release of such earlier date immediately prior number of Escrow Shares permitted to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to be sold in accordance with the extent permitted by law, become schedule for sale of shares set forth in the property of Parent free and clear of any claims or interest of any person previously entitled theretoEscrow Agreement.
Appears in 1 contract
Exchange of Certificates. (ai) Parent shall authorize one or more Persons reasonably acceptable to Promptly following the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Merger Effective Time, Parent Horizon shall cause the Exchange Agent deliver to mail, each Person who was a stockholder of Horizon immediately prior to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver a letter of transmittal substantially in the form attached hereto as Schedule 2.2(f) (a “Letter of Transmittal”) and, to each stockholder of Horizon immediately prior to the Exchange Agent sufficient Parent Shares and cash Merger who did not consent to satisfy the Merger ConsiderationMerger, a notice of such stockholder’s right to appraisal of its shares of Horizon capital stock under Section 262 of the DGCL. After the Effective Time, upon receipt Upon each Horizon stockholder’s delivery to Holdco of Certificates for cancellationa Horizon Stock Certificate (or an affidavit of loss as described below), together with a properly completed letter duly executed Letter of transmittal (Transmittal and such other documents as Horizon may reasonably request, Holdco shall promptly deliver to such Horizon stockholder a stock certificate for the number of shares of Holdco Common Stock or Holdco Series A Stock into which shall specify that delivery shall shares represented by the surrendered Horizon Stock Certificates were converted less the number of shares to be effected, held and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and placed into escrow in accordance with this Agreement.
(ii) Holdco and the instructions thereon, the holder of such Certificates Surviving Corporation shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent deduct and withhold from applicable consideration payable pursuant to this Agreement with respect to Horizon’s Common Stock into which and Preferred Stock, such amounts as Holdco or the Company Shares theretofore represented by Surviving Corporation are required to deduct or withhold therefrom under the Certificates Code or under any applicable tax law. To the extent such amounts are so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest deducted or withheld, such amounts shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent treated for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have this Agreement as having been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver paid to the Exchange Agent all documents necessary Horizon stockholder to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as whom such amounts would otherwise escheat have been paid. The stockholders of Horizon shall bear and pay all taxes that could arise on them because of the entering of Horizon or the stockholders of Horizon into and/or the completion of this Agreement.
(iii) In the event any Horizon Stock Certificate shall have been lost, stolen or destroyed, Holdco may, in its discretion and as a condition precedent to the payment of any consideration payable pursuant this Agreement, with respect to the Common Stock or Preferred Stock previously represented by such Horizon Stock Certificate, require the Horizon stockholder claiming such Horizon Stock Certificate to be lost, stolen or destroyed to provide an appropriate affidavit and to, if reasonably requested by Holdco, deliver a bond (in such sum as Holdco may reasonably direct) as indemnity against any claim that may be made against it or become property of, any Governmental Entity) shall, the Surviving Corporation with respect to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretosuch Horizon Stock Certificate.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt each outstanding certificate or certificates which, prior thereto, represented one (1) or more shares of Certificates for cancellation, together with a properly completed letter Intellocity Common Stock and/or one (1) or more shares of transmittal (which shall specify that delivery Intellocity Preferred Stock shall be effected, required to be surrendered to ACTV and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each holder of such Certificates Intellocity Common Stock and Intellocity Preferred Stock shall be entitled upon surrender to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent ACTV Common Stock into which the Company Shares shares of Intellocity Common and Intellocity Preferred Stock theretofore represented by the Certificates certificate or certificates so surrendered cancelled shall have been converted pursuant to Section 1.5 and (ii) a check in converted, LESS such holder's portion of the amount of any cash due pursuant to Section 1.5. No interest Escrow Shares, which shall be paid deposited in an escrow account as more fully described in Article 4. Until so exchanged, each such outstanding certificate which, prior to the Effective Time, represented shares of Intellocity Common Stock or Intellocity Preferred Stock shall accrue on any such amounts.
(c) Until surrendered in accordance with be deemed for all corporate purposes, subject to the further provisions of this Section 1.8Article 3, each Certificate shall represent for all purposes only to evidence the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares ownership of the number of whole shares of ACTV Common Stock into which Company Shares shall be converted in the Merger at such shares of Intellocity Common Stock and Intellocity Preferred Stock have been so converted. No dividend payable to holders of shares of ACTV Common Stock of record as of any date subsequent to the Effective Time shall be deemed paid to have been issued at the holder of any certificate which, prior to the Effective Time. If any , represented shares of Intellocity Common Stock and Intellocity Preferred Stock, until such certificate or certificates representing Parent Shares are surrendered as provided in this Article 3(a) or pursuant to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition letters of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer transmittal or other taxes required instructions with respect to lost certificates provided by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoACTV.
Appears in 1 contract
Samples: Merger Agreement (Actv Inc /De/)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective TimeDate, Parent shall cause the Exchange Agent make available to maileach record holder who, to former record holders as of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver was a holder of an outstanding certificate or certificates which immediately prior to the Exchange Agent sufficient Parent Effective Time represented Company Shares (the "Certificate" or "Certificates"), a letter of transmittal and cash to satisfy instructions for use in effecting the Merger Consideration. After surrender of the Effective Time, upon receipt of Certificates for cancellationpayment therefor and conversion thereof. Upon surrender to Parent of a Certificate, together with a properly completed such letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonduly executed, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate one or more certificates as requested by the holder (properly issued, executed and countersigned, as appropriate) representing that number of whole shares of fully paid and nonassessable shares of Parent Common Stock into to which the such holder of Company Shares theretofore represented by shall have become entitled pursuant to the Certificates provisions hereof, (ii) as to any fractional share of Parent Common Stock, a check representing the cash consideration to which such holder shall have become entitled pursuant hereto, and (iii) any dividend or other distribution to which such holder is entitled pursuant hereto, and the Certificate so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5forthwith be canceled. No interest shall will be paid or accrued on the cash payable upon the surrender of the Certificates. If any portion of the consideration to be received upon exchange of a Certificate (whether a certificate representing shares of Parent Common Stock or by check representing cash for a fractional share) is to be issued or paid to a person other than the person in whose name the Certificate surrendered in exchange therefor is registered, it shall accrue on be a condition of such issuance and payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such exchange shall pay in advance any transfer or other taxes required by reason of the issuance of a Certificate or a check representing cash for a fractional share to such amounts.
(c) Until surrendered other person, or established to the satisfaction of Parent that such tax has been paid or that such tax is not applicable. From the Effective Time until surrender in accordance with the provisions of this Section 1.83.2, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12the consideration provided in this Agreement of Merger. All payments of respective shares of Parent Shares into which Company Shares shall be converted Common Stock that are made upon surrender of Certificates in accordance with the Merger at the Effective Time terms hereof shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued made in a name other than that in which the Certificate surrendered is registered, it shall be a condition full satisfaction of such exchange that the Person requesting such exchange deliver rights pertaining to the Exchange Agent all documents necessary to evidence and effect Company Shares evidenced by such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoCertificates.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one At or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly soon as practicable after the Effective Time, Parent shall cause ADAC will provide or mail to the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (i) a letter of transmittal together with Certificates, in customary form and containing such provisions as ADAC may reasonably require and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver certificates representing ADAC Common Stock. Upon surrender of a Company Stock Certificate to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates ADAC for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonreasonably required by ADAC, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that the number of whole shares of Parent ADAC Common Stock into which that such holder has the Company Shares theretofore represented by the Certificates so surrendered shall have been converted right to receive pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Article 1 (after withholding the Holdback Common Stock (as defined in Section 1.88.1)), and the Company Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted upon such surrender a certificate representing shares of ADAC Common Stock (and cash in the Merger at lieu of any fractional share of ADAC Common Stock) as contemplated by this Article 1.
(b) No dividends or other distributions declared or made with respect to ADAC Common Stock with a record date after the Effective Time shall be deemed paid to have been issued at the Effective Time. If holder of any certificates representing Parent Shares are unsurrendered Company Stock Certificate with respect to be issued the shares of ADAC Common Stock represented thereby, and no cash payment in a name other than that in which the Certificate surrendered is registered, it lieu of any fractional share shall be a condition of paid to any such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrenderedholder, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which until such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or surrenders such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.Company Stock Certificate in accordance with this
Appears in 1 contract
Samples: Merger Agreement (Adac Laboratories)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective TimeDate of the Merger, upon receipt each holder of Certificates an outstanding certificate representing shares of Linear California Common Stock may, at such stockholder's option, but need not, surrender the same for cancellationcancellation to the transfer agent for the Linear California Common Stock, together with a properly completed letter of transmittal as exchange agent (which shall specify that delivery shall be effectedthe "Exchange Agent"), and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent the Surviving Corporation's Common Stock into which the Company Shares surrendered shares were converted as herein provided. Unless and until so surrendered, each outstanding certificate theretofore representing shares of Linear California Common Stock shall be deemed for all purposes to represent the number of shares of the Surviving Corporation's Common Stock into which such shares of Linear California Common Stock were converted in the Merger. The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any shares of stock represented by the Certificates so surrendered such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 the Surviving Corporation or the Exchange Agent, have and (ii) a check in the amount of be entitled to exercise any cash due pursuant voting and other rights with respect to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right and to receive Merger Consideration and, if applicable, amounts under Section 1.12dividends and other distributions upon the shares of Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Parent Shares into which Company Shares shall be converted Each certificate representing Common Stock of the Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Timerestrictions on transferability as the certificates of Linear California so converted and given in exchange therefore, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws, or other such additional legends as agreed upon by the holder and the Surviving Corporation. If any certificates representing Parent Shares are certificate for shares of Linear Delaware stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to Linear Delaware or the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Linear Delaware that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent each of the shareholders of the Company (the "Shareholders") shall deliver to Parent the Exchange Agent certificate or certificates representing their shares of Company Common Stock (each, a "Certificate") in form sufficient for transfer and cancellation pursuant thereto. As a condition to the issuance of Parent Shares and cash Common Stock hereunder, each Shareholder who is not a party to satisfy this Agreement, as identified on Schedule 2.04(a) attached hereto (the Merger Consideration. After "Other Shareholders"), shall submit the Effective Time, upon receipt of Certificates Certificate (or Certificates) for cancellation, such shares to Parent together with a properly completed letter transmittal letter, in form and substance satisfactory to Parent, containing such investment representations and warranties and covenants, respectively, consistent with Section 4.04 hereof (other than Section 4.04(e) and 4.04(l)) and Section 7.11 hereof respectively, of transmittal this Agreement as shall reasonably be required by Parent (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery "Transmittal Letter"). The approval of the Certificates to the Exchange Agent) and other requested documents and Merger by each Shareholder in accordance with Section 8.03(f) and/or the instructions thereonsurrender by such Shareholder of Certificate(s) of Company Common Stock for cancellation and exchange shall be deemed an agreement by such Shareholder to be bound by the terms of Section 7.08 hereof. Upon surrender of a Certificate for cancellation to Parent in form sufficient for transfer and cancellation pursuant hereto and delivery to Parent of such other documents as may reasonably be required by Parent, the holder of Shareholder surrendering such Certificates Certificate, along with a Transmittal Letter, if applicable, shall be entitled to receive in exchange therefor (ix) a certificate representing evidencing that number of whole shares of Parent Common Stock which such holder has the right to receive in respect of the shares of Company Common Stock formerly evidenced by such Certificate (after taking into which the account all shares of Company Shares theretofore represented Common Stock then held of record by the Certificates so surrendered shall have been converted pursuant to Section 1.5 such holder) and (iiy) a check in representing the amount of any cash due in lieu of fractional shares of Parent Common Stock, if any, and unpaid dividends or other distributions, if any, to which such holder is entitled pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.82.04, each Certificate shall represent for all purposes only the right after giving effect to receive Merger Consideration andany applicable withholding tax, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which and the Certificate so surrendered is registered, it shall forthwith be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been cancelled. No interest will be paid or is not applicable. Beginning accrued on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder cash in lieu of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.fractional shares and
Appears in 1 contract
Samples: Merger Agreement (Bisys Group Inc)
Exchange of Certificates. (a) Parent shall authorize one or As soon as practicable after the Effective Time, but in any event no more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly than ten business days after the Effective Time, Parent shall cause will send to the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (i) a letter of transmittal together with Certificatesin customary form and containing such provisions as Parent may reasonably specify, and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, certificates representing Parent shall deliver Common Stock. Upon surrender of a Company Stock Certificate to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, reasonably required by Parent and risk referenced in the letter of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereontransmittal, the holder of such Certificates Company Stock Certificate shall be entitled to receive from Parent, and Parent shall cause such holder to receive, in exchange therefor (i) a certificate representing that the number of whole shares of Parent Common Stock into which that such holder has the right to receive pursuant to the provisions of this Section 1, and the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.9, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender, a certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by this Section 1. If any Company Stock Certificate shall have been converted pursuant lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to Section 1.5 and (ii) a check in the amount issuance of any cash due pursuant certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to Section 1.5. provide an appropriate affidavit.
(b) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional share shall accrue on be paid to any such amountsholder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.9 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Until surrendered No fractional shares of Parent Common Stock shall be issued in accordance connection with the provisions Merger, and no certificates for any such fractional shares shall be issued. In lieu of such fractional shares, any holder of capital stock of the Company who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, upon surrender of such holder’s Company Stock Certificate(s), be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the average of the closing sale prices of a share of Parent Common Stock as reported on the Nasdaq Capital Market or the OTC Bulletin Board, as applicable, for each of the 10 consecutive trading days immediately preceding the Closing Date.
(d) Parent and the Surviving Entity shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to this Section 1.8Agreement such amounts as Parent or the Surviving Entity may be required to deduct or withhold therefrom under the Code or under any provision of state, each Certificate local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall represent be treated for all purposes only the right under this Agreement as having been paid to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as whom such amounts would otherwise escheat tohave been paid.
(e) Neither Parent nor the Surviving Entity shall be liable to any holder or former holder of capital stock of the Company for any shares of Parent Common Stock (or dividends or distributions with respect thereto), or become property offor any cash amounts, delivered to any Governmental Entitypublic official pursuant to any applicable abandoned property, escheat or similar law.
(f) shallEach certificate for Parent Common Stock, Option Assumption Notice and Warrant Assumption Document shall bear appropriate legends (i) concerning the need for registration or an exemption from registration under the Securities Act prior to transfer of such Parent Common Stock, the extent permitted by law, become Company Options and the property of Parent free Company Warrants; and clear of any claims or interest of any person previously entitled thereto.(ii) the lock-up restrictions reflected in EXHIBIT D.
Appears in 1 contract
Samples: Merger Agreement (Sbe Inc)
Exchange of Certificates. (a) Parent The Holding Company shall authorize one or more Persons reasonably acceptable to the appoint First-Citizens Bank & Trust Company to act as Exchange Agent hereunder exchange agent (the “Exchange Agent”)) for the Share Exchange. Promptly after As of the Effective Time, Parent the Holding Company shall deposit, or shall cause to be deposited, with the Exchange Agent Agent, for the benefit of the holders (prior to mailthe Effective Time) of certificates evidencing shares of Bank Stock (“Bank Stock Certificates”), certificates representing the shares of the Holding Company Stock (“Holding Company Certificates”) issuable pursuant to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates Section 1 in exchange for such shares of Bank Stock (such Holding Company Certificates, the Merger Consideration“Exchange Fund”).
(b) Promptly after the Effective Time, Parent the Holding Company shall deliver to cause the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After mail to each person who was a record holder, as of the Effective Time, upon receipt of Certificates for cancellationa Bank Stock Certificate, together with a properly completed form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Bank Stock Certificates shall pass, only upon proper delivery of the Bank Stock Certificates to the Exchange Agent) and instructions for use in effecting the surrender of the Bank Stock Certificates in exchange for the Exchange Consideration. Upon surrender to the Exchange Agent of a Bank Stock Certificate, together with such letter of transmittal duly executed and such other requested documents and in accordance with as may be reasonably required by the instructions thereonExchange Agent, the holder of such Certificates Bank Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate Holding Company Certificate representing the Exchange Consideration that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only holder has the right to receive Merger Consideration andin respect of the Bank Stock Certificate surrendered pursuant to Section 1, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares and the surrendered certificate shall be converted in delivered to the Merger at the Effective Time shall be deemed to have been issued at the Effective TimeHolding Company. If any certificates representing Parent Shares are delivery of a Holding Company Certificate is to be issued in made to a name person other than that the person in which whose name the Bank Stock Certificate surrendered is registered, it shall be a condition of such the exchange and delivery that the Person Bank Stock Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and delivery pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of delivery to a certificate representing Parent Shares in a name person other than that of the registered holder of the Bank Stock Certificate surrendered, surrendered or establish to the satisfaction of the Exchange Agent Holding Company that such tax has been paid or is not applicable. Beginning on Until surrendered in accordance with the date which is twelve months following provisions of this Section 4, each Bank Stock Certificate (other than Bank Stock Certificates representing Dissenting Shares) shall represent for all purposes only the Closing Dateexchange rights established pursuant to this Agreement.
(c) At any time more than one year after the Effective Time, Parent the Holding Company shall act as be entitled to require the Exchange Agent to deliver to it the Holding Company Certificates that had been made available to the Exchange Agent and thereafter any holder not exchanged for Bank Stock Certificates. Thereafter, holders of an unsurrendered Certificate shares of Bank Stock shall look solely only to Parent for any amounts to which such holder may be due, the Holding Company (subject to applicable law. Notwithstanding any other provisions the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any portion Exchange Consideration that may be payable upon due surrender of the Merger Consideration remaining unclaimed five Bank Stock Certificates held by them. If any Bank Stock Certificates shall not have been surrendered prior to three years after the Effective Time (or such earlier date immediately prior to such time as such amounts on which any Exchange Consideration would otherwise escheat to, or become the property ofof any governmental unit or agency), any Governmental Entity) the Exchange Consideration in respect of such Bank Stock Certificates shall, to the extent permitted by applicable law, become the property of Parent the Holding Company, free and clear of any all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, none of the Bank, the Holding Company or the Exchange Agent shall be liable to any holder of a share of Bank Stock for any Exchange Consideration delivered in respect of such share of Bank Stock to a public official pursuant to any abandoned property, escheat or other similar law.
(d) The Holding Company may in its discretion elect not to treat any unsurrendered shares of Bank Stock as shares of Holding Company Stock for purposes of the payment of dividends or other distributions. If the Holding Company in its discretion so elects, then unless and until any outstanding Bank Stock Certificates shall be so surrendered, no dividends payable to the holders of Holding Company Stock shall be paid to the holder of the unsurrendered Bank Stock Certificate; provided, however, upon surrender and exchange of each outstanding Bank Stock Certificate for a Holding Company Certificate, there shall be paid to the holder thereof the amount, without interest, of all dividends and other distributions, if any, which theretofore were declared and became payable, but were not paid, with respect to said shares.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Share Exchange (TSB Financial CORP)
Exchange of Certificates. (a) From and after the Effective Time, each holder of an outstanding certificate which immediately prior to the Effective Time represented shares of Company Common Stock shall be entitled to receive in exchange therefor, upon surrender thereof to an exchange agent reasonably satisfactory to Parent and the Company (the "Exchange Agent"), a certificate or certificates representing the number of whole shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.1(a). Notwithstanding any other provision of this Agreement, (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock have surrendered them for exchange as provided herein, no dividends or other distributions shall be paid with respect to any shares represented by such certificates and no payment for fractional shares shall be made and (ii) without regard to when such certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid on any dividends or other distributions or any payment for fractional shares. Upon surrender of a certificate which immediately prior to the Effective Time represented shares of Company Common Stock, there shall be paid to the holder of such certificate the amount of any dividends or other distributions which theretofore became payable, but which were not paid by reason of the foregoing, with respect to the number of whole shares of Parent Common Stock represented by the certificate or certificates issued upon such surrender.
(b) If any certificate for shares of Parent Common Stock is to be issued in a name other than that in which the certificate for shares of Company Common Stock surrendered in exchange therefor is registered, it shall be a condition of such exchange that the person requesting such exchange shall pay any applicable transfer or other taxes required by reason of such issuance.
(c) Within five days after the Effective Time, Parent shall authorize one or more Persons reasonably acceptable make available to the Company to act as Exchange Agent hereunder the certificates representing shares of Parent Common Stock required to effect the exchanges referred to in paragraph (the “Exchange Agent”). Promptly a) above and cash for payment of any fractional shares referred to in Section 3.4.
(d) Within five days after the Effective Time, Parent shall cause the Exchange Agent to mail, mail to former each holder of record holders of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Shares who have not previously submitted letters of transmittal together with Common Stock (the "Company Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
") (bi) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal satisfactory to the Company and approved by it prior to Closing (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Company Certificates shall pass, only upon actual delivery of the Company Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other requested documents and in accordance with as the instructions thereonExchange Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the shares of Company Shares Common Stock theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to the provisions of Section 1.5 3.1(a), and (ii) the Company Certificates so surrendered shall be canceled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a check in the amount holder of shares of Company Common Stock for any cash due shares of Parent Common Stock or dividends or distributions thereon delivered to a public official pursuant to Section 1.5. No interest shall be paid applicable abandoned property, escheat or shall accrue on any such amountssimilar laws.
(ce) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on Promptly following the date which is twelve nine months following after the Closing DateEffective Time, Parent shall act as the Exchange Agent shall deliver to Parent all cash, certificates (including any Parent Common Stock) and thereafter any other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of an unsurrendered a Company Certificate shall look solely may surrender such Company Certificate to Parent for any amounts to which such holder may be due, the Surviving Corporation and (subject to applicable lawabandoned property, escheat and similar laws) receive in exchange therefor the Parent Common Stock, without any interest thereon. Notwithstanding any other provisions of this Agreementthe foregoing, any portion none of the Merger Consideration remaining unclaimed five years after Exchange Agent, Parent, Subsidiary, the Effective Time Company or the Surviving Corporation shall be liable to a holder of shares of Company Common Stock for any shares of Parent Common Stock delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such earlier date immediately prior Company Certificate to be lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such time lost, stolen or destroyed Company Certificate the Parent Common Stock deliverable in respect thereof determined in accordance with this Article III. When authorizing such issuance in exchange therefor, the Board of Directors of the Surviving Corporation may, in its discretion and as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, a condition precedent to the extent permitted by lawissuance thereof, become require the property owner of Parent free and clear of such lost, stolen or destroyed Company Certificate to give the Surviving Corporation such indemnity as it may reasonably direct as protection against any claims claim that may be made against the Surviving Corporation with respect to the Company Certificate alleged to have been lost, stolen or interest of any person previously entitled theretodestroyed.
Appears in 1 contract
Exchange of Certificates. (a) Parent The Company shall authorize one use its best efforts to cause each holder of Company Shares to deliver to Buyer at the Closing such shareholder's Certificate. At the Closing, Buyer or more Persons reasonably acceptable the Surviving Corporation shall deliver to each Company Shareholder who has previously delivered a Certificate the Per Share Merger Consideration issuable in respect of such shareholder's Certificate, less, with respect to the Company to act as Exchange Agent hereunder Controlling Shareholders only, such shareholder's pro-rata share of the Escrow Fund (the “Exchange Agent”"Closing Per Share Merger Consideration"). Promptly , by wire transfer of immediately available funds to an account designated in writing by such shareholder to Buyer.
(b) If any Company Shareholder does not deliver his or her Certificate at or prior to the Closing, then from and after the Effective Time, Parent each holder of an outstanding Certificate shall cause have the Exchange Agent right to mailsurrender such Certificate to Buyer and receive promptly (and in any event within 10 days) in exchange therefor the Closing Per Share Merger Consideration payable in respect of such Certificate. Until surrendered, each outstanding Certificate that prior to former record holders of the Effective Time represented Company Shares who shall be deemed for all corporate purposes to evidence ownership of the Per Share Merger Consideration attributable to the surrendered Company Shares, but shall, subject to applicable dissenting rights under Minnesota Law and Section 2.3, have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly no other rights. From and after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery there shall be effected, and risk no further registration of loss of, and title to, transfers on the Certificates shall pass, only upon delivery records of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amountsCompany Shares.
(c) Until surrendered in accordance with In the provisions of this Section 1.8, each event any Certificate shall represent have been lost, stolen or destroyed, upon the making of an appropriate affidavit of that fact, Buyer shall pay in exchange for all purposes only such Certificate the right to receive Closing Per Share Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition upon receipt of such exchange that the Person requesting affidavit and such exchange deliver shareholder will be entitled to the Exchange Agent all documents necessary to evidence and effect Per Share Merger Consideration for each such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be dueCompany Share, subject to applicable law. Notwithstanding any other provisions the terms of this Agreement and the Escrow Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Harland John H Co)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable Section 2.2.1 Prior to the Effective Time, Manpower shall deposit, or shall cause to be deposited, with Mellon Investor Services or another bank or trust company designated by Manpower (the "Exchange Agent"), for the benefit of the Company Shareholders, for exchange in accordance with this Article 2 through the Exchange Agent, certificates representing the Manpower Shares. Manpower agrees to act as make available to the Exchange Agent hereunder (from time to time as needed and promptly following a request therefor from the “Exchange Agent”), cash sufficient to pay cash in lieu of fractional shares pursuant to Section 2.1.4. Any cash and certificates of Manpower Common Stock deposited with the Exchange Agent shall hereinafter be referred to as the "Exchange Fund." The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be paid pursuant to Section 2.1 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. Manpower will pay all fees and expenses of the Exchange Agent.
Section 2.2.2 Promptly after the Effective Time, Parent Manpower and the Surviving Corporation shall cause the Exchange Agent to mailmail to each holder of record, to former record holders as of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver of an outstanding certificate or certificates that immediately prior to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective TimeTime represented shares of Company Common Stock (each a "Certificate"), upon receipt of Certificates for cancellation, together with a properly completed form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange AgentAgent and shall be in such form and have such other provisions as Manpower and the Company may reasonably specify) and other requested documents and instructions for use in accordance effecting the surrender of the Certificates in exchange for the Merger Consideration.
Section 2.2.3 Upon surrender to the Exchange Agent of a Certificate or Certificates, together with such letter of transmittal duly executed by the instructions thereonholder of record thereof, the holder of record of such Certificate or Certificates shall be entitled to receive in exchange therefor (i) a certificate representing the Merger Consideration that number of whole shares of Parent Common Stock into which the such Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only Shareholder has the right to receive Merger Consideration andunder this Article 2, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares and such Certificate or Certificates shall forthwith be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Timecanceled. If any certificates representing Parent Shares are Merger Consideration is to be issued in paid to a name Person other than that the Company Shareholder in which whose name the surrendered Certificate surrendered is registered, it shall be a condition of exchange that such exchange surrendered Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the issuance of exchange by a certificate representing Parent Shares in a name Person other than that the holder of the registered holder record of the Certificate surrendered, surrendered or such Person shall establish to the satisfaction of the Exchange Agent Manpower that such tax has been paid or is not applicable. Beginning on Until surrendered in accordance with the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this AgreementSection 2.2, any each Certificate shall represent, for all purposes, the right only to receive upon such surrender the Merger Consideration in respect of the number of shares of Company Common Stock evidenced by such Certificate.
Section 2.2.4 Any portion of the Merger Consideration remaining unclaimed five years Exchange Fund which remains undistributed to the Company Shareholders for six months after the Effective Time shall be delivered to Manpower upon demand, and any Company Shareholders who have not theretofore complied with this Article 2 shall thereafter look only to Manpower to claim the Merger Consideration, without any interest thereon.
Section 2.2.5 No dividends or other distributions that are declared on or after the Effective Time on Manpower Common Stock or are payable to the holders of record thereof on or after the Effective Time will be paid to the Company Shareholders entitled by reason of the Merger to receive certificates representing Manpower Common Stock until such Company Shareholders surrender their Certificates, as provided in this Section 2.2. Subject to the effect of applicable Law, there shall be paid to the holder of record of the certificates representing such Manpower Common Stock (or, if applicable under Section 2.2.3, the other Person) (a) at the time of such surrender or as promptly as practicable thereafter, the amount of any dividends or other distributions theretofore paid with respect to whole shares of such earlier Manpower Common Stock having a record date immediately on or after the Effective Time and a payment date prior to such time surrender and (b) at the appropriate payment date or as promptly as practicable thereafter, the amount of dividends or other distributions payable with respect to whole shares of Manpower Common Stock having a record date on or after the Effective Time but prior to surrender and a payment date subsequent to surrender. In no event shall the Company Shareholder or other Person entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions.
Section 2.2.6 Neither Manpower nor the Company shall be liable to any Company Shareholder for any Merger Consideration properly delivered to a public official pursuant to any abandoned property, escheat or similar Law.
Section 2.2.7 If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Manpower, the posting by such Person of a bond, in such amount as Manpower may direct, as indemnity against any claim that may be made against it or the Exchange Agent with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration which the holder thereof would have been entitled to receive in respect of such lost, stolen or destroyed Certificate pursuant to Section 2.2.3, without any interest thereon, together with any amounts would otherwise escheat tothen payable pursuant to Section 2.2.5.
Section 2.2.8 All Merger Consideration paid in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to such shares of Company Common Stock (other than the rights, or become property ofif any, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretounder Section 2.2.5).
Appears in 1 contract
Samples: Merger Agreement (Right Management Consultants Inc)
Exchange of Certificates. (a) Parent shall authorize one Prior to receiving any Merger Consideration, each holder of record of a certificate or more Persons reasonably acceptable certificates that immediately prior to the Effective Time represented issued and outstanding shares of capital stock of the Company to act as Exchange Agent hereunder (the “Exchange AgentCertificates”). Promptly after the Effective Time, Parent ) shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver delivered to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates shall be entitled to receive in exchange therefor Purchaser or its agent (i) a certificate representing that number properly completed and duly executed letter of whole shares transmittal, in substantially the form attached hereto as Exhibit C (a “Letter of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 Transmittal”) and (ii) a check in the amount Certificates held of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any record by such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Timeholder. If any certificates representing Parent Shares are Merger Consideration is to be issued in paid to a name Person other than that the Person in which whose name the Certificate so surrendered is registered, it shall be a condition of exchange that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the issuance of exchange to a certificate representing Parent Shares in a name Person other than that of the registered holder of the such Certificate surrendered, or establish to the reasonable satisfaction of the Exchange Agent Purchaser that such tax Tax has been paid or is not applicable. Beginning Until surrendered as contemplated by this Section 3.7, each Certificate shall be deemed as of the Effective Time to represent only the right to receive, upon surrender of such Certificate in accordance with this Section 3.7(a), the portion of the Merger Consideration, if any, into which the shares represented by such Certificate shall have been converted pursuant to Section 3.7.
(b) All Merger Consideration paid or payable upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid or payable in full satisfaction of all rights pertaining to the shares represented by such Certificates, and there shall be no further registration of transfers on the date which is twelve months following stock transfer books of the Closing DateSurviving Corporation of the shares that were issued and outstanding immediately prior to the Effective Time. If, Parent shall act as after the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely Effective Time, Certificates are presented to Parent the Surviving Corporation for any amounts reason, they shall be canceled and exchanged for the portion of the Merger Consideration, if any, payable pursuant to which such holder may this Agreement as provided in this Article III.
(c) None of the Purchaser, Merger Sub or the Surviving Corporation shall be due, subject liable to applicable law. Notwithstanding any other provisions of this Agreement, former Stockholder or Optionholder for any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of thereon properly delivered to a public official pursuant to any person previously entitled theretoapplicable abandoned property, escheat or similar Law.
Appears in 1 contract
Samples: Merger Agreement (PRGX Global, Inc.)
Exchange of Certificates. (a) Parent At the Closing, Buyer shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder exchange agent in effecting the exchange of the Net Merger Consideration Per Share for certificates or satisfactory lost certificate affidavits in lieu thereof (collectively, the “Exchange Agent”"Certificates") representing Shares entitled to payment pursuant to Section 3.01 (including any Dissenting Shares which may be surrendered as no longer dissenting). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after Upon the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt surrender of Certificates for cancellationeach Certificate, together with a properly completed letter of transmittal (which shall specify that delivery shall such Tax or other information as may be effectedrequired to enable Buyer, and risk of loss ofMerger Sub, and title toor the Surviving Corporation to comply with any withholding or reporting obligations under applicable law, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates Stockholder thereof shall be entitled to receive in exchange therefor (i) a certificate representing that an amount equal to the Net Merger Consideration Per Share multiplied by the number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates such Certificate, payable as provided in Section 3.02, and such Certificate shall be cancelled. Until so surrendered and exchanged, each Certificate shall have been converted pursuant represent solely the right to receive an amount equal to the Net Merger Consideration Per Share multiplied by the number of Shares represented by such Certificate and payable as provided in Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.53.02. No interest shall be paid or shall accrue accrued on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Net Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in Per Share upon the Merger at surrender of the Effective Time shall be deemed to have been issued at the Effective TimeCertificate. If any certificates representing Parent Shares are Net Merger Consideration is paid to be issued in a name any Entity other than that the Entity in which whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange that the Person Entity requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent Buyer any transfer or other taxes Taxes required by reason of the issuance payment of a certificate representing Parent Shares in a name such Net Merger Consideration to any Entity other than that of the registered holder of the Certificate surrendered, or such Entity shall establish to the satisfaction of the Exchange Agent Buyer that such tax Tax has been paid or is not applicable. Beginning on Notwithstanding the date which is twelve months following foregoing, neither Buyer nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Each holder of a Certificate not tendered for exchange at the Closing Date, Parent shall act as may surrender the Exchange Agent Certificate to the Surviving Corporation and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, (subject to applicable lawabandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Net Merger Consideration Per Share multiplied by the number of Shares represented by such Certificate, payable as provided in Section 3.02, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general unsecured creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers of any Shares on the stock transfer books of the Surviving Corporation. Notwithstanding any other provisions of If Certificates are presented to the Surviving Corporation or Buyer after the Closing, they shall be cancelled and exchanged for the applicable Net Merger Consideration Per Share, payable as provided in this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (TBC Corp)
Exchange of Certificates. (aA) Parent shall authorize one At or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly soon as practicable after the Effective Time, Parent shall cause will send to the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (i) a letter of transmittal together with Certificatesin customary form and containing such provisions as Parent may reasonably specify, and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, certificates representing Parent shall deliver Common Stock. Upon surrender of a Company Stock Certificate to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, reasonably required by Parent the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (isubject to Section 8.3) a certificate representing that the number of whole shares of Parent Common Stock into which that such holder has the Company Shares theretofore represented by the Certificates so surrendered shall have been converted right to receive pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1, and the Company Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent for all purposes only the right to receive Merger Consideration andupon such surrender a certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock as described in Section 1.8(c)) as contemplated by this Section 1. If any Company Stock Certificate shall have been lost, if applicablestolen or destroyed, amounts under Section 1.12. Parent Shares into which may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Shares shall Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be converted in made against Parent or the Merger at Surviving Corporation with respect to such Company Stock Certificate.
(B) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be deemed paid to have been issued the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional share shall be paid to any such holder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.8 (at the Effective Time. If any certificates representing which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(C) No fractional shares of Parent Shares are to Common Stock shall be issued in a name other than that in which connection with the Certificate surrendered is registeredMerger, it and no certificates for any such fractional shares shall be a condition issued. In lieu of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrenderedfractional shares, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate capital stock or other securities of the Company who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, upon surrender of such holder's Company Stock Certificate(s), be paid in cash the dollar amount (rounded to the nearest whole cent), determined by multiplying such fraction by the Parent Stock Price.
(D) Parent and the Surviving Corporation shall look solely be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to this Agreement such amounts as Parent for or the Surviving Corporation are required to deduct or withhold therefrom under the Code or under any amounts to which such holder may be dueprovision of state, subject to applicable local or foreign tax law. Notwithstanding any other provisions of To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement, any portion of Agreement as having been paid to the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior Person to such time as whom such amounts would otherwise escheat tohave been paid.
(E) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of capital stock of the Company for any shares of Parent Common Stock (or dividends or distributions with respect thereto), or become property offor any cash amounts, delivered to any Governmental Entity) shallpublic official pursuant to any applicable abandoned property, to the extent permitted by escheat or similar law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
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Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable After the Effective Time of the Merger, each holder of an outstanding certificate representing Syms Common Stock may, at such holder’s option, surrender the same for cancellation to the Company to act American Stock Transfer & Trust Company, as Exchange Agent hereunder exchange agent (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent the Surviving Corporation’s Common Stock into which the Company Shares surrendered shares were converted as provided herein. Unless and until so surrendered, each outstanding certificate theretofore representing shares of Syms Common Stock shall be deemed for all purposes to represent the number of shares of the Surviving Corporation’s Common Stock into which such shares of Syms Common Stock were converted in the Merger.
(b) The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any shares of stock represented by the Certificates so surrendered such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 the Surviving Corporation or the Exchange Agent, have and (ii) a check in be entitled to exercise any voting and other rights with respect to, and to receive dividends and other distributions upon the amount shares of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any Common Stock of the Surviving Corporation represented by, such amountsoutstanding certificate as provided above.
(c) Until surrendered in accordance with Each certificate representing Common Stock of the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Time. restrictions on transferability as the certificates of Syms surrendered in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws, or other such additional legends as agreed upon by the holder and the Surviving Corporation.
(d) If any certificates representing Parent Shares are certificate for shares of the Surviving Corporation stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof: (i) that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer; (ii) that such transfer otherwise be proper and comply with applicable securities laws; and (iii) that the person requesting such exchange deliver transfer pay to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to Surviving Corporation or the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
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Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable After the Effective Date of the merger, each holder of an outstanding certificate representing shares of HHH Common Stock may be asked to surrender the Company same for cancellation to act as Exchange Agent hereunder American Registrar & Transfer Co. (the “"Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent the Surviving Corporation's Common Stock as the case may be, into which the Company Shares surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore represented by representing shares of HHH Common Stock shall be deemed for all purposes to represent the Certificates so surrendered number of shares of the Surviving Corporation's Common Stock, respectively, into which such shares of HHH Common Stock, as the case may be, were converted in the Merger. The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 the Surviving Corporation or the Exchange Agent, have and (ii) a check in the amount of be entitled to exercise any cash due pursuant voting and other rights with respect to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right and to receive Merger Consideration and, if applicable, amounts under Section 1.12dividends and other distributions upon the shares of Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Parent Shares into which Company Shares shall be converted Each certificate representing Common Stock of the Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed same legends, if any, with respect to have been issued at the Effective Timerestrictions on transferability as the certificates of .HHH so converted and given in exchange therefore, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws. If any certificates representing Parent Shares are certificate for shares of the Surviving Corporation's stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
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Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly From and after the Effective TimeDate, Parent shall cause the Exchange Agent each holder of an outstanding certificate which immediately prior to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective TimeDate, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery represented outstanding shares of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the holder of such Certificates Acquiror's Common Stock shall be entitled to receive in exchange therefor (i) therefor, upon surrender thereof to Xxxxxxxx Stock Transfer, Inc., the transfer agent of the Surviving Corporation, whose address is 0000 Xxxxx 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxx, 00000, a certificate or certificates representing that the number of whole shares of Parent the Surviving Corporation into which such holder's shares were converted. No holder of a certificate or certificates which immediately prior to the Effective Date represented shares of the Acquiror's Common Stock into which shall be entitled to receive any dividend or other distribution from the Company Shares theretofore represented by Surviving Corporation until surrender of such holder's certificate or certificates for a certificate or certificates representing shares of the Certificates so surrendered Surviving Corporation's Common Stock. Upon such surrender, there shall have been converted pursuant be paid to Section 1.5 and (ii) a check in the holder the amount of any cash due pursuant dividends or other distributions (without interest) which theretofore became payable, but which were not paid by reason of the foregoing, with respect to Section 1.5the number of shares of the Surviving Corporation's Common Stock represented by the certificates issued upon such surrender. No interest After the Effective Date, there shall be paid or no further registration of transfers of the Acquiror's Common Stock. If, after the Effective Date, certificates representing the Acquiror's Common Stock are presented to the Surviving Corporation, they shall accrue on any be canceled and exchanged for a certificate representing the number of shares of the Surviving Corporation into which such amounts.
(c) Until pre-merger shares in the Acquiror were converted. From and after the Effective Date, the Surviving Corporation shall, however, be entitled to treat certificates for shares of the Acquiror's Common Stock which have not yet been surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only exchange as evidencing solely the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares the number of shares of the Surviving Corporation into which Company Shares shall be converted such pre-merger shares in the Merger at the Effective Time shall Acquiror are to be deemed converted, as represented by such certificates, notwithstanding any failure to have been issued at the Effective Timesurrender such certificates in exchange therefor. If any certificates representing Parent Shares are certificate for shares of the Surviving Corporation's Common Stock is to be issued in a name other than that in which the Certificate certificate for shares of the Acquiror's Common Stock surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance that the Person person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and issuance shall pay to the Exchange Agent any transfer or other taxes tax required by reason of the issuance of a certificate representing Parent Shares certificates for such shares of Surviving Corporation's Common Stock in a name other than that of the registered holder of the Certificate certificate surrendered, or shall establish to the satisfaction of the Exchange Agent Surviving Corporation or its agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly From and after the Effective Time--NFB, Parent Nu Skin Enterprises shall cause effect the Exchange Agent payment of the NFB Merger Consideration upon surrender of certificates (the "NFB Certificates") that, prior to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time--NFB, Parent represented shares of NFB Common. Upon the surrender of each such NFB Certificate formerly representing shares of NFB Common, Nu Skin Enterprises shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, pay the holder of such Certificates shall NFB Certificate the NFB Merger Consideration to be entitled paid to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted such holder pursuant to Section 1.5 2.4.7 above in exchange therefor, and such NFB Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such NFB Certificate (iiother than NFB Certificates representing NFB Dissenting Shares or shares of NFB Common held by NFB) a check in shall represent solely the amount of any cash due right to receive the NFB Merger Consideration into which such certificate may be exchanged pursuant to Section 1.52.4.7 above. No interest shall be paid or shall accrue on the NFB Merger Consideration. If the NFB Merger Consideration (or any such amounts.
(cportion thereof) Until is to be delivered to any Person other than the Person in whose name the NFB Certificate formerly representing shares of NFB Common surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered exchange therefor is registered, it shall be a condition of to such exchange that the NFB Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent Nu Skin Enterprises any transfer or other taxes required by reason of the issuance payment of the NFB Merger Consideration to a certificate representing Parent Shares in a name Person other than that of the registered holder of the NFB Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent Nu Skin Enterprises that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly From and after the Effective Time, Parent each holder of an outstanding certificate that immediately prior to the Effective Time represented Shares shall cause the Exchange Agent be entitled to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates receive in exchange therefor, upon surrender thereof to Chase Mellon Shareholder Sexxxxxx, Xxxris Bank, or such other xxxxxxge agent as is reasonably satisfactory to Parent and the Company (the "Exchange Agent"), the Merger Consideration to which such holder is entitled pursuant to Section 4.1(a). Notwithstanding any other provision of this Agreement, without regard to when such certificates representing Shares are surrendered for exchange as provided herein, no interest shall be paid on any payment of the Merger Consideration.
(b) If any Merger Consideration is to be issued in a name other than that in which the certificate for Shares surrendered in exchange therefor is registered, it shall be a condition of such exchange that the person requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of such Merger Consideration in a name other than that of the registered holder of the certificate surrendered, or shall establish to the satisfaction of Parent that such tax has been paid or is not applicable.
(c) Promptly at the Effective Time, Parent shall make available to the Exchange Agent the cash in immediately available United States funds and Parent Common Stock necessary for payment of all the Merger Consideration.
(d) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash shall mail to satisfy the Merger Consideration. After each holder of record of a certificate or certificates that immediately prior to the Effective Time, upon receipt of Certificates for cancellation, together with Time represented outstanding Shares (the "Company Certificates") (i) a properly completed form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Company Certificates shall pass, only upon actual delivery of the Company Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for the applicable Merger Consideration. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other requested documents and in accordance with as the instructions thereonExchange Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock the applicable Merger Consideration into which the Company Shares theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to the provisions of Section 1.5 4.1(a), and (ii) the Company Certificates so surrendered shall forthwith be canceled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a check in the amount holder of any cash due Shares for Merger Consideration delivered to a public official pursuant to Section 1.5. No interest shall be paid applicable abandoned property, escheat or shall accrue on any such amountssimilar laws.
(ce) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on Promptly following the date which is twelve nine months following after the Closing Effective Date, Parent shall act as the Exchange Agent shall deliver to Parent all cash, certificates and thereafter any other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of an unsurrendered a Company Certificate shall look solely may surrender such Company Certificate to Parent for any amounts to which such holder may be due, the Surviving Corporation and (subject to applicable lawabandoned property, escheat and similar laws) receive in exchange therefor the Merger Consideration, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Subsidiary, the Company or the Surviving Corporation shall be liable to a holder of Company Common Stock for any other provisions Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(f) In the event any Company Certificate shall have been lost, stolen or destroyed, upon the making of this Agreementan affidavit of that fact by the person claiming such Company Certificate to be lost, any portion of stolen or destroyed, the Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Merger Consideration remaining unclaimed five years after deliverable in respect thereof determined in accordance with this Article IV. When authorizing such payment in exchange therefor, the Effective Time (or such earlier date immediately prior to such time Board of Directors of the Surviving Corporation may, in its discretion and as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, a condition precedent to the extent permitted by lawissuance thereof, become require the property owner of Parent free and clear of such lost, stolen or destroyed Company Certificate to give the Surviving Corporation such indemnity as it may reasonably direct as protection against any claims that may be made against the Surviving Corporation with respect to the Company Certificate alleged to have been lost, stolen or interest of any person previously entitled theretodestroyed.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable 6.2.1 As of the Effective Time, all shares of Company Common Stock that are outstanding immediately prior thereto will, by virtue of the Merger and without further action, cease to exist, and all such shares will be converted into the Company right to act receive from HNC the number of shares of HNC Common Stock determined as Exchange Agent hereunder (the “Exchange Agent”). Promptly set forth in Section 1.1, subject to Section 1.2 hereof.
6.2.2 At and after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders each certificate representing outstanding shares of Company Shares who Common Stock will represent the number of shares of HNC Common Stock into which such shares of Company Common Stock have not previously submitted letters been converted, and such shares of transmittal together with Certificates, instructions for surrendering their Certificates HNC Common Stock will be deemed registered in exchange for the Merger Consideration.
(b) Promptly name of the holder of such certificate. As soon as practicable after the Effective Time, Parent shall deliver HNC will mail or cause to be mailed to each holder of record of shares of Company Common Stock (a) instructions for use in effecting the Exchange Agent sufficient Parent Shares surrender of the certificates for such shares (the "COMPANY CERTIFICATES") to HNC for cancellation and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with (b) a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Company Certificates to HNC's transfer agent accompanied by the Exchange Agentspecified documentation, shall confirm acceptance of the Escrow Agreement and shall be in such form and contain such other provisions as HNC may reasonably specify). Each holder of any such shares will then promptly surrender to HNC for cancellation all Company Certificates for such holder's shares of Company Common Stock and, accompanied by the completed and signed letter of transmittal and any other appropriate documentation. If a Company Certificate for any such shares has been lost, the holder of the shares may furnish the transfer agent with an affidavit of lost certificate and, if reasonably requested (in light of the circumstances) by HNC, a bond in such amount as the transfer agent or HNC may reasonably request. Upon surrender of a Company Certificate to HNC for cancellation (or upon delivery of such affidavit and any such bond) together with a duly executed letter of transmittal and such other requested documents as may be reasonably required by the transfer agent, (a) HNC will cause the transfer agent to issue to such surrendering holder certificate(s) for the number of shares of HNC Common Stock to which such holder is entitled pursuant to Section 1.1, subject to Section 1.2, less the shares of HNC Common Stock deposited into escrow pursuant to Section 1.1.6, and (b) HNC will distribute any cash payable under Sections 1.1 and 1.2, less the cash deposited in escrow pursuant to Section 1.1.6.
6.2.3 All shares of HNC Common Stock and cash delivered upon the surrender of Company Certificates in accordance with the instructions thereonterms hereof will be delivered to the registered holder. After the Effective Time, there will be no further registration of transfers of the holder shares of Company Common Stock on the stock transfer books of Company. If, after the Effective Time, Company Certificates are presented for transfer or for any other reason, they will be canceled and exchanged and certificates therefor will be delivered as provided in this Section 6.2.
6.2.4 Until Company Certificates representing Company Common Stock outstanding prior to the Merger are surrendered pursuant to Section 6.2.2 above, such Certificates shall certificates will be entitled deemed, for all purposes, to receive in exchange therefor evidence ownership of (ia) a certificate representing that the number of whole shares of Parent HNC Common Stock into which the shares of Company Shares theretofore represented by the Certificates so surrendered shall Common Stock will have been converted pursuant to Section 1.5 and (iib) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted cash as provided in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence Sections 1.1 and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto1.2.
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Exchange of Certificates. (a) Parent shall authorize one or more Persons As soon as reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly practicable after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Shares who have not previously submitted letters of transmittal together with CertificatesCommon Stock shall, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver upon surrender to the Exchange Agent sufficient Parent Shares of such certificate(s) and cash to satisfy acceptance thereof by the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, Exchange Agent (together with a properly completed the letter of transmittal (which shall specify that delivery shall be effecteddescribed in Section 2.2(b), duly executed, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to such other documents as may reasonably be required by the Exchange Agent) and other requested documents and in accordance with the instructions thereon), the holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number the amount of whole shares of Parent Common Stock the Merger Consideration into which the number of shares of Company Shares theretofore Common Stock previously represented by the Certificates such certificate(s) so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in this Agreement. After the amount Effective Time, there shall be no further transfer on the records of any cash due the Company or its transfer agent of certificates representing shares of Company Common Stock which have been converted pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only Agreement into the right to receive the Merger Consideration, and if such certificates are presented for transfer, they shall be cancelled against delivery of the Merger Consideration. If the Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are is to be issued in a name delivered to any person other than that the person in which whose name the Certificate certificate(s) representing shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the Person certificate(s) so surrendered shall be properly endorsed with the signature guaranteed or otherwise in proper form for transfer, and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance payment of the Merger Consideration to a certificate representing Parent Shares in a name person other than that of the registered holder of the Certificate surrenderedthereof, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on Until surrendered as contemplated by this Section 2.2(a), each certificate which, prior to the date which is twelve months following the Closing DateEffective Time, Parent represented outstanding shares of Company Common Stock (other than shares cancelled pursuant to Section 1.8(b) and Dissenting Shares) shall act as the Exchange Agent and thereafter be deemed at any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years time after the Effective Time (to represent only the right to receive upon such surrender the Merger Consideration in accordance with Section 1.8. No interest will be paid or such earlier date immediately prior will accrue on any cash payable as Merger Consideration to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property holder of Parent free and clear shares of any claims or interest of any person previously entitled theretoCompany Common Stock.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders Upon surrender of Company Shares who have not previously submitted letters of transmittal together with any Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal duly executed stock powers, (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates i) on or prior to the Exchange Agent) and other requested documents and Closing Date to Newco or the Surviving Corporation in accordance with the instructions thereonSection 6.2(n), the holder of such Certificates each Certificate shall be entitled to receive from the Surviving Corporation on the Closing Date in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 therefor, and (ii) a check following the Closing Date to the Surviving Corporation, the holder of each such Certificate shall receive from the Surviving Corporation immediately thereafter in exchange therefor, the portion of the Merger Consideration, in the amount form of any cash due by certified check drawn on a bank located in New York City or wire transfer of immediately available funds (if sufficient wire transfer instructions are submitted by such holder), to which such holder is entitled pursuant to Section 1.52.8, without interest, less any required withholding of U.S. federal, state or local income Taxes; PROVIDED, that no withholding pursuant to Code Sections 897 and 1445 will be made by Newco, the Company and the Surviving Corporation to the extent that the Company shall have provided the tax affidavit to Newco described in Section 6.2(t). No interest Each such Certificate so surrendered shall be canceled. If payment or delivery is to be made to a Person other than the Person in whose name a Certificate so surrendered is registered, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer, that the signatures on the certificate or any related stock power shall be properly guaranteed and that the Person requesting such payment 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 satisfaction of the Surviving Corporation that such Tax has been paid or shall accrue on any such amounts.
(c) is not applicable. Until surrendered in accordance with the provisions of this Section 1.82.11, each Certificate (other than Certificates canceled pursuant to Section 2.8(b) and Dissenting Shares) shall represent for all purposes only the right to receive the Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at form provided for by this Agreement, without interest. All cash paid upon surrender of the Effective Time Certificates in accordance with this Section 2.11 shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued paid in a name other than that in which the Certificate surrendered is registered, it shall be a condition full satisfaction of such exchange that the Person requesting such exchange deliver all rights pertaining to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to shares of Common Stock represented thereby.
(b) In the Exchange Agent event that any transfer Certificate shall have been lost, stolen or other taxes required destroyed, upon the making of an affidavit of that fact by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of such lost, stolen or destroyed Certificate in form and substance acceptable to Newco (if such affidavit is accepted before the Effective Time) or the Surviving Corporation (if such affidavit is accepted after the Effective Time) and accompanied by a bond in an amount satisfactory to Newco (if such affidavit is accepted before the Effective Time) or the Surviving Corporation (if such affidavit is accepted after the Effective Time), the Surviving Corporation will issue in exchange for such lost, stolen or destroyed Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years in respect thereof in the manner set forth in Sections 2.8 and 2.11.
(c) If Certificates are not surrendered prior to the date that is one year after the Effective Time Time, unclaimed amounts (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entityincluding interest thereon) of Merger Consideration shall, to the extent permitted by applicable law, become the property of Parent the Surviving Corporation and may be commingled with the general funds of the Surviving Corporation, free and clear of any all claims or interest interest. Notwithstanding the foregoing, any shareholders of any person previously entitled theretothe Company who have not theretofore complied with the provisions of this Section 2.11 shall thereafter look only to the Surviving Corporation and only as general creditors thereof for payment for their claims in the form and amounts to which such shareholders are entitled.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of the shares of Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with, the provisions of this Section 2.11.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Town Sports International Inc)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable Prior to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause designate a bank or trust company to act as agent for the Exchange Agent holders of the Shares in connection with the Merger (the "Paying Agent") to mailreceive the funds, as needed, to former record which holders of Company the Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for shall become entitled pursuant to Section 2.1(a). Such funds shall be invested by the Merger ConsiderationPaying Agent as directed by Parent or the Surviving Corporation. All interest earned on such funds shall be paid to Parent.
(b) Promptly after At the Effective Time, Parent shall deliver will instruct the Paying Agent to the Exchange Agent sufficient Parent Shares promptly, and cash to satisfy the Merger Consideration. After in any event not later than three business days following the Effective Time, upon receipt mail to each holder of Certificates for cancellationrecord of a certificate or certificates, together with which immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the "Certificates"), whose Shares were converted pursuant to Section 2.1(a) into the right to receive the Merger Consideration (i) a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon delivery of the Certificates to the Exchange AgentPaying 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 payment of the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other requested documents and in accordance agent or agents as may be appointed by the Company, together with the instructions thereonsuch letter of transmittal, duly executed, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number the Merger Consideration for each share of whole shares of Parent Company Common Stock into which the Company Shares theretofore formerly represented by such Certificate, to be mailed within three business days of receipt thereof, and the Certificates Certificate so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in forthwith be cancelled. If payment of the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are is to be issued in made to a name person other than that the person in which whose name the surrendered Certificate surrendered is registered, it shall be a condition of such exchange payment that the Person Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such payment shall have paid any transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance payment of the Merger Consideration to a certificate representing Parent Shares in a name person other than that of the registered holder of the Certificate surrendered, surrendered or establish shall have established to the satisfaction of the Exchange Agent Surviving Corporation that such tax either has been paid or is not applicable. Beginning on Until surrendered as contemplated by this Section 2.2, each Certificate (other than Certificates representing Company Common Stock held by Parent or the date which is twelve months following Purchaser, or any subsidiary of Parent or the Closing DatePurchaser, Parent or Dissenting Shares (as defined in Section 2.4)) shall act as the Exchange Agent and thereafter be deemed at any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years time after the Effective Time to represent only the right to receive the Merger Consideration as contemplated by this Section 2.2.
(c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person (as defined in Section 3.1) claiming such earlier date Certificate to be lost, stolen or destroyed, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof as determined in accordance with this Article II, provided that the Person to whom the Merger Consideration is paid shall, as a condition precedent to the payment thereof, give the Surviving Corporation a bond in such sum as it may direct or otherwise indemnify the Surviving Corporation in a manner satisfactory to it against any claim that may be made against the Surviving Corporation with respect to the Certificate claimed to have been lost, stolen or destroyed.
(d) After the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers on the stock transfer books of the Surviving Corporation of Shares which were outstanding immediately prior to such time as such amounts would otherwise escheat tothe Effective Time. If, or become property ofafter the Effective Time, any Governmental Entity) shall, Certificates are presented to the extent permitted by lawSurviving Corporation, become they shall be cancelled and exchanged for the property of Parent free and clear of any claims or interest of any person previously entitled theretoMerger Consideration as provided in this Article II.
Appears in 1 contract
Exchange of Certificates. (a) At or as soon as practicable after the Closing Date, Parent shall authorize one or more Persons reasonably acceptable will send to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (i) a letter of transmittal together with Certificatesin customary form and containing such provisions as Parent may reasonably specify, and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, certificates representing Parent shall deliver Common Stock. Upon surrender of a Company Stock Certificate to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonreasonably required by Parent, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that the number of whole shares of Parent Common Stock into which that such holder has the right to receive pursuant to the provisions of this Section 1, and the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Closing Date, to represent only the right to receive upon such surrender a certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by this Section 1. If any Company Stock Certificate shall have been converted pursuant lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to Section 1.5 and (ii) a check in the amount issuance of any cash due pursuant certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to Section 1.5. provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(b) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Closing Date shall be paid or to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional share shall accrue on be paid to any such amountsholder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.9 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Until surrendered No fractional shares of Parent Common Stock shall be issued in accordance connection with the provisions Merger, and no certificates for any such fractional shares shall be issued. In lieu of such fractional shares, any holder of capital stock of the Company who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, upon surrender of such holder's Company Stock Certificate(s), be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, such fraction.
(d) Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to this Section 1.8Agreement such amounts as Parent or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, each Certificate local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall represent be treated for all purposes only the right under this Agreement as having been paid to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as whom such amounts would otherwise escheat tohave been paid.
(e) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of capital stock of the Company for any shares of Parent Common Stock (or dividends or distributions with respect thereto), or become property offor any cash amounts, delivered to any Governmental Entity) shallpublic official pursuant to any applicable abandoned property, to the extent permitted by escheat or similar law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Exchange of Certificates. (a) At or prior to the Closing, Parent shall authorize one enter into an agreement with Mellon Investor Services (or more Persons reasonably acceptable to such other bank or trust company in the Company to act United States as Exchange Agent hereunder (may be designated by Parent, the “Exchange Agent”), which shall provide that Parent shall, upon the Closing, deliver to the Exchange Agent the shares of Parent Common Stock necessary for the payment of the Merger Consideration pursuant to Section 1.3(a)(iv) and cash sufficient to make the payments required by Section 1.6(d) and 1.6(e) (the “Exchange Fund”). Promptly Parent shall pay the fees and expenses of the Exchange Agent.
(b) As soon as reasonably practicable after the Effective TimeClosing, Parent shall cause the Exchange Agent to maildeliver or mail to each holder of record of an outstanding Certificate (i) a letter of transmittal, in form and substance reasonably satisfactory to former record holders of Company Shares who have not previously submitted letters of transmittal together Parent, with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to such changes as the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal shall reasonably request (which shall specify that delivery shall be effected, and risk of loss of, and title to, to the Certificates shall pass, only upon delivery of the Certificates to the Exchange AgentAgent 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 surrendering Certificates in exchange for consideration specified and allocated in Section 1.6. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other requested documents and in accordance with as may reasonably be required by the instructions thereonExchange Agent, the holder of such Certificates Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into therefore the Merger Consideration for which the Company Shares theretofore represented shares formerly held by such holder are to be exchanged in accordance with Section 1.6, and the Certificates so surrendered shall have be canceled. If a transfer of ownership of shares of Company Stock represented by a Certificate has not been converted pursuant to Section 1.5 and (ii) a check registered in the amount of any cash due pursuant Company’s transfer records, payment may be made to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name Person other than that the Person in which whose name the Certificate so surrendered is registered, it shall registered if such Certificate is properly endorsed or otherwise be a condition of such exchange that in proper form for transfer and the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and issuance shall pay to the Exchange Agent any transfer or other taxes Tax required by reason of the issuance of payment to a certificate representing Parent Shares in a name Person other than that of the registered holder of the such Certificate surrendered, or establish to the satisfaction of the Exchange Agent Parent that such tax Tax has been paid or is not applicable. Beginning .
(c) All cash and/or shares of Parent Common Stock issued upon the surrender of Certificates in accordance with the terms of this Article I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Stock represented by such certificates, and there shall be no further registration of transfers on the date stock transfer books of the Surviving Corporation of the shares of Company Stock which is twelve months following were outstanding immediately prior to the Closing DateClosing. If, Parent shall act as after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and thereafter exchanged as provided in this Article I, except as otherwise provided by law.
(d) None of Parent, the Transitory Subsidiary, the Surviving Corporation or any holder of an unsurrendered their respective Affiliates or the Exchange Agent shall be liable to any person in respect of any shares of Parent Common Stock or cash delivered to a public official in accordance with any applicable abandoned property, escheat or other similar law. If any Certificate shall look solely not have been surrendered prior to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five three (3) years after the Effective Time (or such earlier date immediately prior to such time as such earlier date on which any amounts payable in accordance with this Article I would otherwise escheat to, to or become the property of, of any Governmental Entity) ), any such amounts shall, to the extent permitted by applicable law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any person Person previously entitled thereto.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the execution and delivery to the Exchange Agent by the holder of record of such Certificate of such additional documentation that the Exchange Agent may reasonably request, the payment to the Exchange Agent by such holder of any indemnity/surety bond in such amount as required by the Exchange Agent and the payment to the Exchange Agent by such holder of any handling or other fee required by the Exchange Agent, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration with respect thereto in accordance with Section 1.6.
Appears in 1 contract
Samples: Merger Agreement (Emeritus Corp\wa\)
Exchange of Certificates. (a) Prior to the Closing Date, Parent shall authorize one select a reputable bank or more Persons trust company reasonably acceptable to the Company to act as Exchange Agent hereunder exchange agent in the Merger (the “Exchange Agent”). Promptly Within two (2) business days after the Effective Time, Parent shall cause deposit with the Exchange Agent to mailAgent, to former record for the benefit of the holders of Company Shares who have not previously submitted letters Shares, (i) certificates representing the shares of transmittal Parent Common Stock issuable pursuant to this Section 1, and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c) (such cash and shares of Parent Common Stock, together with Certificatesany dividends or distributions with respect thereto, instructions for surrendering their Certificates in exchange for being referred to as the Merger Consideration“Exchange Fund”).
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash will mail to satisfy the Merger Consideration. After the Effective Time, upon receipt record holders of Company Stock Certificates for cancellation, together with (i) a properly completed letter of transmittal in customary form and containing such provisions as Parent and the Company may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected, and risk of loss of, and title to, the to Company Stock Certificates shall pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration. Upon surrender of a Company Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other requested documents and in accordance with as may be reasonably required by the instructions thereonExchange Agent or Parent, (A) the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor the Merger Consideration, and (iB) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall have been converted pursuant to be immediately canceled. Until surrendered as contemplated by this Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest 1.7, each Company Stock Certificate shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with deemed, from and after the provisions of this Section 1.8Effective Time, each Certificate shall to represent for all purposes only the right to receive the Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into and any distribution or dividend the record date for which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at is after the Effective Time. If any certificates Company Stock Certificate shall have been lost, stolen or destroyed, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificates the Merger Consideration; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Shares are Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such reasonable sum as Parent may reasonably direct) as indemnity against any claim that may be issued in made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock with a name other than that in which record date after the Certificate surrendered is registered, it Effective Time shall be a condition paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock that such exchange holder has the right to receive pursuant to the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7.
(d) Any portion of the Exchange Fund that remains undistributed to holders of Company Stock Certificates as of the Person requesting such exchange deliver date one (1) year after the Effective Time shall be delivered to Parent upon demand, and any holders of Company Stock Certificates who have not theretofore surrendered their Company Stock Certificates to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent accordance with this Section 1.7 shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely only to Parent for any amounts satisfaction of their claims for the Merger Consideration to which such holder is entitled pursuant hereto.
(e) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be duerequired to be deducted or withheld therefrom under the Code or any provision of state, subject to applicable law. Notwithstanding local or foreign tax law or under any other provisions of applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement, any portion of Agreement as having been paid to the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior Person to such time as whom such amounts would otherwise escheat tohave been paid.
(f) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), or become for any cash amounts, properly delivered to any public official in compliance with any applicable abandoned property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims escheat law or interest of any person previously entitled theretosimilar Legal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable After the Effective Date of the Merger, each holder of a certificate representing shares of NovaBay CA common stock outstanding immediately prior to the Company Effective Date of the Merger may, at such shareholder’s option, surrender the same for cancellation to act as Exchange Agent hereunder an exchange agent designated by the Surviving Corporation (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent Common Stock the Surviving Corporation’s common stock into which the Company Shares theretofore shares formerly represented by the Certificates surrendered certificate were converted as herein provided. Unless and until so surrendered surrendered, each certificate representing shares of NovaBay CA common stock outstanding immediately prior to the Effective Date of the Merger shall be deemed for all purposes, from and after the Effective Date of the Merger, to represent the number of shares of the Surviving Corporation’s common stock into which such shares of NovaBay CA common stock were converted in the Merger. The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any shares of stock represented by such certificate shall, until such certificate shall have been converted pursuant surrendered for transfer or conversion or otherwise accounted for to Section 1.5 the Surviving Corporation or the Exchange Agent, have and (ii) a check in the amount of be entitled to exercise any cash due pursuant voting and other rights with respect to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right and to receive Merger Consideration and, if applicable, amounts under Section 1.12dividends and other distributions upon the shares of common stock of the Surviving Corporation represented by such certificate as provided above. Parent Shares into which Company Shares shall be converted Each certificate representing common stock of the Surviving Corporation so issued in the Merger at shall bear the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registeredsame legends, it shall be a condition of such exchange that the Person requesting such exchange deliver if any, with respect to the Exchange Agent all documents necessary to evidence restrictions on transferability as the certificates of NovaBay CA so converted and effect such transfer and pay to given in exchange therefor, unless otherwise determined by the Exchange Agent any transfer Board of Directors of the Surviving Corporation in compliance with applicable laws, or other taxes required such additional legends as agreed upon by reason of the issuance of a certificate representing Parent Shares in a name other than that of holder and the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretoSurviving Corporation.
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Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to At the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective TimeClosing, Parent shall deliver to the Exchange Agent sufficient Shareholders certificates representing the Parent Shares and cash Common Stock in exchange for the Company Stock Certificates. In lieu of any fractional Parent shares to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall such holder would otherwise be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonentitled, the holder of such Company Stock Certificate shall be paid in cash an amount equal to the sum of (1) the dollar amount (rounded to the nearest whole cent) determined by multiplying $132.80 by the fraction of a share of Parent Common Stock that would otherwise be deliverable to such holder above. All Company Stock Certificates so exchanged shall be canceled. Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive the Parent Common Stock (and cash in lieu of fractional Parent shares) in accordance with this Agreement. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(b) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional share shall be paid to any such holder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.8 (at which time such holder shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 all such dividends and (ii) a check in the amount of any distributions and such cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amountspayment).
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Qualcomm Inc/De)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act As soon as Exchange Agent hereunder (the “Exchange Agent”). Promptly practicable after the Effective Time, Parent shall cause will send to the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (i) a letter of transmittal together with Certificatesin customary form and containing such provisions as Parent may reasonably specify, and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver cash payment. Upon surrender of a Company Stock Certificate to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationParent, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonreasonably required by Parent, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number the amount such holder has the right to receive pursuant to the provisions of whole shares of Parent Common Stock into which this Section 1, and the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender the cash payment as contemplated by this Section 1. If any Company Stock Certificate shall have been converted lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the payment of any cash, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(b) The Stockholders shall be solely responsible for the payment of any and all income taxes related to the transactions contemplated hereby. Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to Section 1.5 and (ii) a check in this Agreement such amounts as Parent or the amount Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of any cash due pursuant to Section 1.5state, local or foreign tax law. No interest To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid or shall accrue on any to the Person to whom such amountsamounts would otherwise have been paid.
(c) Until surrendered in accordance with Neither Parent nor the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares Surviving Corporation shall be converted in the Merger at the Effective Time shall be deemed liable to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition holder or former holder of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason capital stock of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent Company for any amounts cash amounts, delivered to which such holder may be dueany public official pursuant to any applicable abandoned property, subject to applicable escheat or similar law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.
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Exchange of Certificates. (a) Parent As soon as practicable after the Effective Date but in any event within 15 business days after the Effective Date, ChaseMellon, as exchange agent, shall authorize make available, and each stockholder of the Company will be entitled to receive, upon surrender to ChaseMellon of one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders certificates representing shares of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions Capital Stock for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares cancellation and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify containing appropriate representations, certificates representing the number of shares of Amazxx.xxx Xxxmon Stock that delivery such stockholder is entitled to receive pursuant to Section 1.7.1 hereof; provided, however, that the certificates representing the Escrow Shares shall be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and retained by ChaseMellon in accordance with the instructions thereon, Escrow Agreement. The shares of Amazxx.xxx Xxxmon Stock that each stockholder of the holder of such Certificates Company shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the Company Shares theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. No interest shall accrue on the Merger Consideration. If the Merger Consideration (or any portion thereof) is to be delivered to any person other than the person in whose name the certificate or certificates representing Parent Shares are to be issued shares of Company Capital Stock surrendered in a name other than that in which the Certificate surrendered exchange therefor is registered, it shall be a condition of to such exchange that the Person person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any Amazxx.xxx xxx transfer or other taxes required by reason of the issuance payment of the Merger Consideration to a certificate representing Parent Shares in a name person other than that of the registered holder of the Certificate certificate or certificates so surrendered, or shall establish to the satisfaction of the Exchange Agent that Amazxx.xxx xxxt such tax has been paid or is not applicable. Beginning on Notwithstanding the date which is twelve months following the Closing Dateforegoing, Parent neither Amazxx.xxx xxx any other party hereto shall act as the Exchange Agent and thereafter any be liable to a holder of an unsurrendered Certificate shall look solely to Parent shares of Company Capital Stock for any amounts Merger Consideration delivered to which such holder may be due, subject a public official pursuant to applicable law. Notwithstanding any other provisions of this Agreementabandoned property, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretosimilar laws.
Appears in 1 contract
Samples: Merger Agreement (Amazon Com Inc)
Exchange of Certificates. (a) Parent shall authorize one At or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly soon as practicable after the Effective Time, Parent shall cause will send to the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (i) a letter of transmittal together with Certificatesin customary form and containing such provisions as Parent may reasonably specify, and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, certificates representing Parent shall deliver Common Stock. Upon surrender of a Company Stock Certificate to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other reasonably requested documents and in accordance with the instructions thereonby Parent, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) therefore a certificate representing that the number of whole shares of Parent Common Stock into which that such holder has the right to receive pursuant to the provisions of Section 2.5, and the Company Shares theretofore represented by the Certificates Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 2.8, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender a certificate representing shares of Parent Common Stock as contemplated by this Section 2. If any Company Stock Certificate shall have been converted pursuant lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to Section 1.5 and (ii) a check in the amount issuance of any cash due pursuant certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to Section 1.5. provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(b) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, until such holder surrenders such Company Stock Certificate in accordance with this Section 2.8 (at which time such holder shall accrue on any be entitled to receive all such amountsdividends and distributions and such cash payment).
(c) Until surrendered No fractional shares of Parent Common Stock shall be issued in accordance connection with the provisions Merger (and the Holdback Shares described in section 2.10) and no certificates for any such fractional shares shall be issued. In lieu of such fractional shares, any holder of capital stock of the Company who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, upon surrender of such holder's Company Stock Certificate(s), have its entitlement to Parent Shares rounded up or down to the nearest whole number.
(d) Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to this Section 1.8Agreement such amounts as Parent or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, each Certificate local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall represent be treated for all purposes only the right under this Agreement as having been paid to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger at the Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing Parent Shares are to be issued in a name other than that in which the Certificate surrendered is registered, it shall be a condition of such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as whom such amounts would otherwise escheat to, have been paid.
(e) Neither Parent nor the Surviving Corporation shall be liable to any holder or become property of, former holder of capital stock of the Company for any Governmental Entity) shall, to the extent permitted by law, become the property shares of Parent free and clear Common Stock (or dividends or distributions with respect thereto) or for any cash amounts if, on or after the expiration of one (1) year after the Effective Time, such shares are delivered to any claims public official pursuant to any applicable abandoned property, escheat or interest of any person previously entitled theretosimilar law.
Appears in 1 contract
Exchange of Certificates. (a) Parent shall authorize one At or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly soon as practicable after the Effective Time, Parent shall cause will send to the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters Stock Certificates (i) a letter of transmittal together with Certificatesin customary form and containing such provisions as Parent may reasonably specify, and (ii) instructions for surrendering their use in effecting the surrender of Company Stock Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, certificates representing Parent shall deliver Common Stock. Upon surrender of a Company Stock Certificate to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective Time, upon receipt of Certificates for cancellationexchange, together with a properly completed duly executed letter of transmittal (which shall specify that delivery shall and such other documents as may be effected, and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereonreasonably required by Parent, the holder of such Certificates Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that the number of whole shares of Parent Common Stock into which that such holder has the Company Shares theretofore represented by the Certificates so surrendered shall have been converted right to receive pursuant to Section 1.5 and (ii) a check in the amount of any cash due pursuant to Section 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1, and the Company Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent for all purposes only the right to receive Merger Consideration andupon such surrender a certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by this Section 1. If any Company Stock Certificate shall have been lost, if applicablestolen or destroyed, amounts under Section 1.12. Parent Shares into which may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Shares shall Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be converted in made against Parent or the Merger at Surviving Corporation with respect to such Company Stock Certificate.
(b) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be deemed paid to have been issued at the Effective Time. If holder of any certificates representing unsurrendered Company Stock Certificate with respect to the shares of Parent Shares are to be issued Common Stock represented thereby, and no cash payment in a name other than that in which the Certificate surrendered is registered, it lieu of any fractional share shall be a condition of paid to any such exchange that the Person requesting such exchange deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrenderedholder, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which until such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or surrenders such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled thereto.Company Stock Certificate in accordance with
Appears in 1 contract
Samples: Merger Agreement (Zitel Corp)
Exchange of Certificates. (a) Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent sufficient Parent Shares and cash to satisfy the Merger Consideration. After the Effective TimeDate, upon receipt each holder of Certificates an outstanding certificate representing shares of Telecom Common Stock or Telecom Preferred Stock may, at such stockholder's option, surrender the same for cancellationcancellation to Corporate Stock Transfer, together with a properly completed letter of transmittal as exchange agent (which shall specify that delivery shall be effectedthe "Exchange Agent"), and risk of loss of, and title to, the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and other requested documents and in accordance with the instructions thereon, the each such holder of such Certificates shall be entitled to receive in exchange therefor (i) a certificate or certificates representing that the number of whole shares of Parent the Corporation Common Stock into which the Company Shares surrendered shares were converted as herein provided. Unless and until so surrendered, each outstanding certificate theretofore represented by the Certificates so surrendered shall have been converted pursuant to Section 1.5 and (ii) a check in the amount representing shares of any cash due pursuant to Section 1.5. No interest Telecom Common Stock shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent deemed for all purposes only to represent the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares number of shares of the Corporation Common Stock into which Company Shares shall be such shares of Telecom Common Stock were converted in the Merger at the Effective Time Merger. No fractional shares shall be deemed issued but, rather, shall be rounded up to have been the next nearest whole share. Each certificate representing Common Stock of the Corporation so issued at in the Effective TimeMerger shall bear the same legends, if any, with respect to the restrictions on transferability as the certificates of Telecom, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws, or other such additional legends as agreed upon by the holder and the Corporation. If any certificates representing Parent Shares are certificate for shares of the Corporation stock is to be issued in a name other than that in which the Certificate certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the Person certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange deliver transfer pay to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to Surviving Corporation or the Exchange Agent any transfer or other taxes required payable by reason of the issuance of a such new certificate representing Parent Shares in a name other than that of the registered holder of the Certificate surrendered, certificate surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Beginning on the date which is twelve months following the Closing Date, Parent shall act as the Exchange Agent and thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of this Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity) shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any person previously entitled theretopayable.
Appears in 1 contract
