Exchange of Certificates. (a) Prior to the Closing, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.” (b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c). Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be 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 record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, 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 and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common Stock. (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 Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.
Appears in 2 contracts
Samples: Merger Agreement (Acelrx Pharmaceuticals Inc), Merger Agreement (Tetraphase Pharmaceuticals Inc)
Exchange of Certificates. (a) Prior to the ClosingClosing Date, Parent shall select designate a reputable bank or bank, trust company or agent reasonably satisfactory acceptable to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent). At the Closing, subject to Section 1.8, Parent shall issue and deposit or cause to be deposited with the Exchange Agent: Paying Agent cash sufficient to make payments of the Merger Consideration payable pursuant to Section 1.5 (other than payments of any Restricted Share Merger Consideration in respect of which there is a Tax withholding obligation) (the “Payment Fund”). The Payment Fund shall be invested by the Paying Agent as directed by Parent and any and all interest and other amounts earned with respect to funds made available to the Paying Agent pursuant to this Agreement shall be turned over to Parent; provided, however, that (i) nonany such investments shall be in short-certificated shares term obligations of Parent Common Stock represented the United States with maturities of no more than thirty (30) days or guaranteed by book entry issuable pursuant to Section 1.5the United States and backed by the full faith and credit of the United States; and (ii) cash sufficient to make payments in lieu no investment of fractional shares the Payment Fund shall relieve Parent or the Paying Agent from paying the Merger Consideration in accordance with Section 1.5(c). The shares this Agreement, and following any Losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent in the amount of Parent Common Stock and cash amounts so deposited with such Losses to the Exchange Agentextent the funds in the Payment Fund are insufficient for such purposes, together with any dividends or distributions received by which additional funds will be deemed to be part of the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Payment Fund.”
(b) Promptly after the Effective TimeTime (and in any event within two (2) Business Days after the Closing Date), Parent shall cause the Exchange Paying Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Uncertificated Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions (A) as Parent may reasonably specify as to title, authorization, execution and the Company shall reasonably approve prior to the Effective Time delivery (including a provision confirming that delivery of Company Stock Certificates or Book Entry transfer of Uncertificated Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Uncertificated Shares shall pass, only upon proper delivery of such Company Stock Certificates or Book Entry transfer of the Uncertificated Shares to the Exchange Paying Agent)) and (B) as otherwise are reasonably acceptable to the Company; and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry transfer of Uncertificated Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)Merger Consideration. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchangeexchange (or compliance with the reasonable procedures established by the Paying Agent for transfer of Uncertificated Shares), together with the delivery of a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Uncertificated Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs Merger Consideration that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash 1.5, in lieu full satisfaction of any fractional share all rights pertaining to the shares of Parent Company Common Stock pursuant to Section 1.5(c) and any dividends formerly represented by such Company Stock Certificate or other distributions pursuant to Section 1.7(c))Uncertificated Shares; and (B) the Company Stock Certificate or Book Entry Uncertificated Shares so surrendered or transferred shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock that are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares or Uncertificated Shares is registered if: (1) any such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer; and (2) such holder shall have paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Merger Consideration to a Person other than such holder (or shall have established to the reasonable satisfaction of Parent that such bonds and Taxes have been paid or are not applicable). Until surrendered or transferred as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry each Uncertificated Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) Merger Consideration as contemplated by Section 1.5. 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 payment of any non-certificated Merger Consideration with respect to the shares of Parent Company Common Stock in book entry form and CVRspreviously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond (in such sum as Parent may direct) as indemnity against any claim that may be made against the Exchange Paying 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 record date after the Effective Time interest shall be paid or otherwise delivered to the holder of will accrue on any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed Consideration payable to holders of Company Stock Certificates and Book Entry Shares or in respect of Uncertificated Shares.
(c) Any portion of the Payment Fund that remains undistributed to former holders of shares of Company Common Stock as of the date that is one year three hundred sixty-five (365) days after the date on which the Merger becomes effective Effective Time shall be delivered to Parent upon demand, and any former holders of shares of Company Common Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates Certificates, or Book Entry Shares complied with the procedures established by the Paying Agent for transfer of Uncertificated Shares, in accordance with this Section 1.7 1.7, thereafter shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Merger Consideration.
(d) Each of the Paying Agent, Parent Common Stock, CVRs, cash in lieu 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 fractional shares of Parent Company Common Stock pursuant or any Company Equity Award such amounts as Parent determines to Section 1.5(c)be required to be deducted or withheld from such consideration under the Code or any provision of state, and local or foreign Tax law or under any dividends other applicable Law. To the extent such amounts are so deducted or distributions with respect withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to shares of Parent Common Stockthe Person to whom such amounts otherwise would have been paid.
(e) Neither Parent nor If any Company Stock Certificate has not been surrendered, or any Uncertificated Share has not been transferred, by the date immediately prior to the date on which the cash amount that such Company Stock Certificate or Uncertificated Share represents the right to receive otherwise would escheat to or become the property of any Governmental Authority, then such cash amount shall, to the extent permitted by applicable Law and without any action by Parent, the Surviving Corporation or any other Person, become the property of the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
(f) None of Parent, the Surviving Corporation or the Paying Agent 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), any CVRs or for any cash amounts, Merger Consideration delivered to any public official pursuant to in accordance with any applicable abandoned property law, escheat law or other Legal Requirementsimilar applicable Law.
(g) Promptly after the Effective Time, Parent shall cause to be paid, through Parent’s or the Surviving Corporation’s standard payroll practices, to each holder of a share of Company Restricted Stock with respect to which there is a Tax withholding obligation, the applicable Restricted Share Merger Consideration, without interest.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lockheed Martin Corp), Merger Agreement (Aerojet Rocketdyne Holdings, Inc.)
Exchange of Certificates. (a) Prior to the ClosingClosing Date, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company arrange for its transfer agent to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable ). Prior to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the ClosingEffective Time, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c). Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other customary documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock (which shares shall be certificated and CVRs bear an appropriate legend to the effect that such shares have not been registered under the Securities Act and are therefore subject to restrictions on transfer) that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c1.5(d) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)Stock) as contemplated by Section 1.51.5 and any dividends or other distributions pursuant to Section 1.7(c). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRsform, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver indemnification obligation and/or post a bond, in such reasonable and customary indemnification obligation amount as Parent may direct, as indemnity against any claim that may be 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 record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, 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 and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common Stock.
(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 Capital Stock such amounts as may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and paid to the appropriate Governmental Body, 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. The Exchange Agent, Parent and the Surviving Corporation shall use commercially reasonable efforts to reduce or eliminate any such withholding.
(f) All transfer, documentary, registration and other such Taxes (including, without limitation, charges for or in connection with the recording of any instrument or document as provided in this Agreement) payable in connection with the Merger and the other transactions contemplated by this Agreement shall be timely paid by Parent.
(g) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Capital Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, amounts required to be delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.
Appears in 2 contracts
Samples: Merger Agreement (TEKMIRA PHARMACEUTICALS Corp), Merger Agreement (TEKMIRA PHARMACEUTICALS Corp)
Exchange of Certificates. (a) Prior to the ClosingClosing Date, Parent shall select a reputable Interwest Transfer Company, Inc., Parent’s transfer agent, or another bank or trust company reasonably satisfactory to the Company to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At or promptly after the ClosingEffective Time, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated certificates representing the shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares Alternative Cash Consideration in accordance with Section 1.5(c1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of certificates representing Parent Common Stock in book entry formor, CVRsif applicable, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Alternative Cash Consideration. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder a certificate representing the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))or, if applicable the Alternative Cash Consideration; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b1.8(b), each Company Stock Certificate and or Book Entry Share Shares shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.51.5 or, if applicable, the Alternative Cash Consideration. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of certificate representing Parent Common Stock in book entry form and CVRsStock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable bond (in such sum as Parent and customary indemnification obligation the Company reasonably agree to direct) as indemnity against any claim that may be 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 record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, 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 and or Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demandwithin ten (10) days of Parent’s written request therefore, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 1.8 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common StockStock or, CVRsif applicable, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c)Alternative Cash Consideration, and any dividends or distributions with respect to shares of Parent Common Stock.
(d) 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 required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and timely paid over to the appropriate Governmental Body, (i) 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, and (ii) Parent, the Exchange Agent or the Surviving Corporation, as the case may be, shall promptly deliver the amounts so deducted or withheld to the applicable taxing or other authority.
(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 Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other similar Legal Requirement.
Appears in 2 contracts
Samples: Merger Agreement (Broadcast International Inc), Merger Agreement (Alldigital Holdings, Inc.)
Exchange of Certificates. (a) Prior to the Closing, Parent shall select appoint a reputable bank or trust company or a commercial bank reasonably satisfactory acceptable to the Company to act as exchange agent in the Merger Paying Agent hereunder (the “Exchange "Paying Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c"). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect Prior to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall deposit with the Paying Agent the aggregate Merger Consideration under Section 1.5(c) hereof (the "Payment Fund"). The Paying Agent shall deliver the Merger Consideration contemplated to be paid pursuant to Section 1.5(c) out of the Payment Fund.
(b) Parent shall cause the Exchange Agent Paying Agent, as soon as practicable after the Effective Time, to mail to the Persons who were each record holders holder of Company Stock Certificates a certificate or Book Entry Shares certificates which immediately prior to the Effective Time: Time represented outstanding shares of Company Common Stock converted in the Merger (ithe "Certificates") a letter of transmittal in customary form and containing such provisions as Parent may reasonably (which shall specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock the Certificates or Book Entry Shares shall pass, only upon actual delivery of such Company Stock the Certificates or Book Entry Shares to the Exchange Paying Agent); , and (ii) shall contain instructions for use in effecting the surrender of Company Stock the Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(cthe Merger Consideration). Upon surrender for cancellation to the Paying Agent of one or more Certificates held by any record holder of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchangeCertificate, together with a duly executed such letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) transmittal, duly executed, the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive Merger Consideration pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) this Article 1, and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall forthwith be canceledcancelled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share shall No interest will be deemed, from and after paid or accrued on the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition Merger Consideration payable to the issuance holder of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock CertificateCertificates.
(c) No dividends The Paying Agent shall invest the Payment Fund, as directed by Parent, in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or other distributions declared (iii) certificates of deposit, bank repurchase agreements or made bankers acceptances, of commercial banks with assets exceeding $1,000,000,000, and any net earnings with respect to Parent Common Stock with a record date after the Effective Time thereto shall be paid to Parent as and when requested by Parent; provided that any such investment or any such payment of earnings shall not delay the receipt by holders of Certificates of their Merger Consideration or otherwise delivered to impair such holders' respective rights hereunder. Parent must promptly replace any portion of the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to Payment Fund which the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest)Paying Agent loses through investments.
(d) Any portion If any Merger Consideration is to be paid to a name other than that in which the Certificate surrendered is registered, it shall be a condition of such payment that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the person requesting such payment shall pay to the Paying Agent any taxes required by reason of payment or shall establish to the satisfaction of the Exchange Fund Paying Agent that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of such tax has been paid or is not applicable. Parent or the date that is one year after the date on which the Merger becomes effective Paying Agent shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive deduct and withhold from Parent, satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock the consideration otherwise payable pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common Stock.
(e) Neither Parent nor the Surviving Corporation shall be liable this Agreement to any holder or former holder of shares of Company Common Stock such amounts as Parent or the Paying Agent is required to any other Person deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or under any provision of state, local or foreign tax law. To the extent that amounts are so withheld by Parent 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 Parent Company Common Stock (in respect of which such deduction and withholding was made by Parent or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirementthe Paying Agent.
Appears in 2 contracts
Samples: Merger Agreement (TFC Enterprises Inc), Merger Agreement (MFN Financial Corp)
Exchange of Certificates. (a) Prior to the Closing, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to pay the aggregate Cash Consideration and make payments in lieu of fractional shares in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for Cash Consideration, non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c). Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the amount of Cash Consideration, number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive the Cash Consideration, shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the payment of the Cash Consideration, and issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be 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 record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, 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 and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for the Cash Consideration, Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common Stock.
(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 Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.”
2.3 Amendment to Section 5.3(c) of the Merger Agreement. Section 5.3(c) of the Merger Agreement is hereby deleted and replaced in its entirety with the following:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Acelrx Pharmaceuticals Inc), Agreement and Plan of Merger (Tetraphase Pharmaceuticals Inc)
Exchange of Certificates. (a) Prior to the ClosingEffective Time, Parent shall select and appoint a reputable commercial bank or trust company who shall be reasonably satisfactory to the Company to act as exchange the paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable for the payment of the Merger Consideration upon surrender of Certificates. At or prior to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the ClosingEffective Time, Parent shall issue and cause to be deposited deposit with the Exchange Agent: (i) non-certificated Paying Agent for the benefit of the holders of shares of Parent Company Common Stock represented by book entry issuable pursuant to immediately available funds in the amount of the aggregate Merger Consideration under Section 1.5; and 3.01(c) (ii) such cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are being hereinafter referred to collectively as the “Exchange Fund”). The Paying Agent shall deliver the Merger Consideration contemplated to be paid pursuant to Section 3.01(c) out of the Exchange Fund.”
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent shall cause the Exchange Paying Agent to mail to each holder of record of a Certificate or Certificates whose shares were converted into the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior right to receive the Effective Time: Merger Consideration pursuant to Section 3.01(c) (i) a letter of transmittal (which shall be in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock the Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock the Certificates or Book Entry Shares to the Exchange Agent); Paying Agent (or affidavit of loss in lieu thereof in accordance with Section 3.08) and (ii) instructions for use in effecting the surrender of Company Stock the Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)Merger Consideration. Upon surrender of a Company Stock Certificate (or Book Entry Shares affidavit of loss in lieu thereof in accordance with Section 3.08) for cancellation to the Exchange Paying Agent for exchangeor to such other agent or agents as may be appointed by Parent, together with a duly executed such letter of transmittal transmittal, duly executed, and such other documents as may reasonably be reasonably required by the Exchange Agent or Parent: (A) Paying Agent, the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receivereceive in exchange therefor the Merger Consideration into which the shares of Company Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 3.01(c), and the Exchange Agent Certificate 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 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 (and Parent shall cause the Exchange Agent toA) in exchange therefor pay any transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant Taxes required by reason of the payment to Section 1.7(c)); and a Person other than the registered holder of such Certificate or (B) establish to the Company Stock Certificate reasonable satisfaction of the Surviving Corporation that such Tax has been paid or Book Entry Shares so surrendered shall be canceledis otherwise not applicable. Until Except as otherwise provided with respect to unpaid dividends and other distributions in Section 3.04, until surrendered as contemplated by this Section 1.7(b)3.03, each Company Stock Certificate and Book Entry Share (other than Certificates representing Appraisal Shares) shall be deemed, from and deemed at any time after the Effective Time, Time to represent only the right to receive shares of Parent Common Stock and CVRs (and cash upon such surrender the Merger Consideration, without interest, as provided in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5this Agreement. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be 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 record date after the Effective Time interest shall be paid or otherwise delivered to shall accrue on any Merger Consideration payable upon the holder surrender of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest)Certificate.
(d) Any portion of the Exchange Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common Stock.
(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 Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.
Appears in 2 contracts
Samples: Merger Agreement (Ntelos Holdings Corp.), Merger Agreement (Shenandoah Telecommunications Co/Va/)
Exchange of Certificates. (a) Prior to the Closing, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent Company’s transfer agent to act as agent for the stockholders of the Company in connection with the Merger (the “Paying Agent”) and relating to the services to be performed by the Exchange AgentPaying Agent thereby. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash sufficient to make payments in lieu of fractional shares the Cash Consideration in accordance with Section 1.5(c1.8(a)(iii). The shares of Parent Common Stock and cash amounts amount so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Paying Agent with respect to such shares of Parent Common Stock, are is referred to collectively as the “Exchange Payment Fund”. The Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 1.8(a)(iii), except as provided in this Agreement. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Company Common Stock for the Cash Consideration and other amounts contemplated by this Section 1.”
(b) Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, Parent shall cause the Exchange Paying Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock the Offer Price payable with respect thereto pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c1.8(a)(iii). Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Paying Agent shall (and Parent shall cause the Exchange Paying Agent to) in exchange therefor transfer from the Exchange Payment Fund to such holder the number of whole shares of Parent Common Stock and CVRs Offer Price that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))1.8; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b1.10(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) the Offer Price, as contemplated by Section 1.51.8. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance payment of any non-certificated shares of Parent Common Stock in book entry form and CVRsthe Offer Price, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation obligation, against any claim that may be made against the Exchange Paying Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate. Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of Book-Entry Shares, other than with respect to Excluded Shares and Dissenting Shares, a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 1.8(a)(iii) in respect of such Book Entry Shares, without such holder being required to deliver a Company Stock Certificate or an executed letter of transmittal to the Paying Agent, and such Book Entry Shares shall then be canceled.
(c) 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 or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Payment Fund that remains undistributed to holders of Company Stock Certificates and or Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 1.10 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stockpayment of the Offer Price (subject to abandoned property, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(cescheat or other similar laws), and any dividends or distributions with respect to shares of Parent Common Stockwithout interest.
(ed) 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), any CVRs the Offer Price or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirementsimilar law.
Appears in 2 contracts
Samples: Employment Agreement (AutoWeb, Inc.), Merger Agreement (AutoWeb, Inc.)
Exchange of Certificates. (a) Prior On or prior to the ClosingEffective Time, Parent shall select a reputable bank deposit, or trust company reasonably satisfactory shall cause to the Company to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company be deposited, with the Exchange Agent relating to the services to be performed by the Exchange AgentClosing Consideration. At the Closing, Parent shall issue and cause to be The cash deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are is referred to collectively as the “Exchange Payment Fund.”
(b) Promptly To the extent not already delivered or otherwise provided to a Company Stockholder by Parent and the Company during the Pre-Closing Period, promptly after the Effective Time, Parent shall cause the Exchange Agent to shall mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions form, as Parent may reasonably specify and approved by the Company shall reasonably approve prior (a “Letter of Transmittal”) to the Effective Time (including a provision confirming that delivery of each Company Stock Certificates or Book Entry Shares shall be effectedStockholder, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); and (ii) together with instructions for use in effecting the surrender exchange of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock the applicable consideration payable pursuant to Section 1.5(c2.1(c) and any dividends or other distributions pursuant with respect to Section 1.7(c)Company Preferred Stock. Upon surrender the Company Stockholder’s delivery to the Exchange Agent, of a Company Stock Certificate (or Book Entry Shares to the Exchange Agent for exchangean affidavit of loss as described below), together with a duly executed letter Letter of transmittal Transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receivemay reasonably request, and the Exchange Agent shall (and Parent shall cause the Exchange Agent toi) in exchange therefor transfer from the Exchange Fund promptly pay to such holder Company Stockholder the number of whole shares of Parent Common Stock and CVRs that amount such holder has the right Company Stockholder is entitled to receive pursuant to the provisions of Section 1.5 2.1(c) and (and cash in lieu ii) upon receipt of any fractional share Escrow Funds, promptly pay to such Company Stockholder the amount of Parent Common Stock Escrow Funds such holder is entitled to receive pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c2.1(c)); and (B) the . The Company Stock Certificate or Book Entry Shares so surrendered shall forthwith be canceled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share shall be deemed, from From and after the Effective Time, each Company Stock Certificate shall be deemed to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock the consideration payable pursuant to Section 1.5(c2.1(c), and the holder of each such Company Stock Certificate shall cease to have any rights with respect to the Company Capital Stock formerly represented thereby.
(c) Parent, the Surviving Corporation and, if applicable, the Exchange Agent shall be entitled to deduct and withhold from applicable consideration payable pursuant to Section 2.1(c) with respect to Company Capital Stock, such amounts as contemplated Parent or the Surviving Corporation are required to deduct or withhold therefrom under the Code or under any 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 to whom such amounts would otherwise have been paid.
(d) If applicable, any portion of the Payment Fund that remains undistributed by the Exchange Agent to Company Stockholders as of the date that is 180 days after the Closing Date or any portion of the Escrow Fund that remains undistributed as of the date that is 180 days after the deposit by the Escrow Agent of any portion of the Escrow Fund with the Exchange Agent, as the case may be, shall be delivered to Parent upon demand, and any holders of Company Stock Certificates who have not theretofore surrendered their Company Stock Certificates in accordance with this Section 1.52.4 shall thereafter look only to Parent for satisfaction of their claims for the Merger Consideration payable pursuant to Section 2.1(c).
(e) 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 Company Capital Stock thereafter on the records of the Company. If If, after the Effective Time, Company Stock Certificates are presented to Parent, the Surviving Corporation or, if applicable, the Exchange Agent, they shall be canceled and exchanged as provided in this Section 2.4. No interest shall accrue or be paid on any Merger Consideration payable upon the surrender of a Company Stock Certificate.
(f) In the event 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 payment of any non-certificated shares of Parent Common consideration payable pursuant to Section 2.1(c), with respect to the Company Capital Stock in book entry form and CVRspreviously represented by such Company Stock Certificate, require the owner of Person claiming such Company Stock Certificate to be lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to to, if reasonably requested by Parent, deliver a reasonable and customary indemnification obligation bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agentit, Parent or the Surviving Corporation or the Exchange Agent with respect to such Company Stock Certificate.
(cg) 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 or otherwise delivered Notwithstanding anything in this Agreement to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitledcontrary, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion none of the Exchange Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Agent, Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common Stock.
(e) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of a Company Common Stock Certificate or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered amount paid to any a public official pursuant to any applicable abandoned property lawlaws, escheat law or other similar Legal Requirement. Any portion of the Payment Fund remaining unclaimed by holders of Company Stock Certificates three 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 Body and any portion of the Escrow Fund that remains undistributed three years after the deposit by the Escrow Agent of such amount with the Exchange Agent (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Body) shall, to the extent permitted by applicable Legal Requirements, become the property of Parent.
Appears in 1 contract
Samples: Merger Agreement (Volcano Corp)
Exchange of Certificates. (a) Prior On or prior to the ClosingClosing Date, Parent shall select Parent’s transfer agent or a reputable bank or trust company reasonably satisfactory acceptable to the Company to act as exchange agent in the Merger (the “Exchange Agent”). As soon as practicable (and in any event within one Business Day) and after the Effective Time, Parent shall enter into an agreement reasonably acceptable to the Company deposit with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of subject to Section 1.9, certificates or book entry positions representing the Parent Common Stock represented by book entry Shares issuable pursuant to Section 1.5; 1.6 and (ii) subject to Section 1.9, cash sufficient to make payments of the cash consideration payable pursuant to Section 1.6 (including payments to be made in lieu of fractional shares in accordance with Section 1.5(cshares). The shares of Parent Common Stock Shares and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stockshares, are referred to collectively as the “Exchange Fund.”” The cash in the Exchange Fund shall be invested by the Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than 30 days or guaranteed by the United States and backed by the full faith and credit of the United States. No investment of the Exchange Fund shall relieve Parent, the Surviving Corporation or the Exchange Agent from promptly making the payments required by this Section 1, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Exchange Agent in the amount of such losses to the extent the funds in the Exchange Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Exchange Fund.
(b) Promptly As soon as reasonably practicable (and in any event within seven Business Days) after the Effective Time, Parent shall cause the Exchange Agent to will mail to the Persons who were record holders of Company Stock Certificates or Company Book Entry Shares immediately prior to the Effective Time: Time (i) a letter of transmittal transmittal, customary in customary form and containing such provisions as Parent may reasonably specify substance, and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or transfer of Company Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Company Book Entry Shares shall pass, only upon proper delivery of such Company Stock Certificates or transfer of such Company Book Entry Shares to the Exchange Agent); Agent and (ii) instructions for use in effecting the surrender of Company Stock Certificates or transfer of Company Book Entry Shares in exchange for non-certificated shares Merger Consideration. The form and substance of such letter of transmittal and instructions shall be as reasonably agreed to by Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant the Company prior to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Effective Time. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchangeexchange or receipt of an “agent’s message” by the Exchange Agent in connection with the transfer of a Company Book Entry Share, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: , (A) the holder of such Company Stock Certificate or Company Book Entry Shares Share shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs Merger Consideration that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); 1.6 and (B) the Company Stock Certificate so surrendered or the Company Book Entry Shares Share so surrendered transferred shall be canceled. Until surrendered or transferred as contemplated by this Section 1.7(b1.8(b), each Company Stock Certificate and Company Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) Merger Consideration as contemplated by Section 1.51.6. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent or the Exchange Agent may, in its reasonable discretion and as a condition to the issuance payment of any non-certificated shares of Parent Common Stock in book entry form and CVRsMerger Consideration, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond (in such sum as Parent or the Exchange Agent may reasonably direct) as indemnity against any claim that may be 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 Shares with a record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or to the holder of any Company Book Entry Share that has not been transferred, in each case with respect to the shares of Parent Common Stock Shares that such holder has the right to receive in the Merger Merger, until such holder surrenders such Company Stock Certificate or transfers such Company Book Entry Share in accordance with this Section 1.7 1.8 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, 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 and or Company Book Entry Shares as of the date that is one year 365 days after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Company Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or transferred their Company Book Entry Shares in accordance with this Section 1.7 1.8 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), Merger Consideration and any dividends or distributions with respect to shares of Parent Common StockShares included in the Merger Consideration.
(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 or any Company Equity Award such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent any amounts are so deducted or withheld and paid over to the appropriate Governmental Body, 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.
(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 Merger Consideration (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, to Parent Common Shares included in the Merger Consideration) delivered to any public official pursuant to any applicable abandoned property law, escheat law or other similar Legal Requirement.
Appears in 1 contract
Samples: Merger Agreement (Cavium, Inc.)
Exchange of Certificates. (a) Prior At such times as shall be necessary to make the Closingpayments pursuant to Section 2.5 to holders of Shares, Parent shall select make available to the Surviving Corporation, and the Surviving Corporation shall deposit with a reputable bank or trust company reasonably satisfactory to designated by Parent before the Company to act as exchange agent in the Merger (the “Exchange Agent”) Closing Date and shall enter into an agreement reasonably acceptable to the Company with (the Exchange Agent relating "Payment Agent") an amount in cash equal to the services aggregate Per Share Price to which holders of Shares shall be entitled upon consummation of the Merger, to be performed by held for the Exchange Agent. At the Closing, Parent shall issue benefit of and cause distributed to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares such holders in accordance with Section 1.5(c)this Section. The shares of Parent Common Stock and cash amounts so deposited with the Exchange AgentPayment Agent shall agree to hold such funds (such funds, together with any dividends or distributions received earnings thereon, being referred to herein as the "Payment Fund") for delivery as contemplated by this Section and upon such additional terms as may be agreed upon by the Exchange Payment Agent, the Company and Parent. If for any reason (including losses) the Payment Fund is inadequate to pay the cash amounts to which holders of Shares shall be entitled, Parent and the Surviving Corporation shall in any event remain liable, and Parent shall make available to the Surviving Corporation additional funds for the payment thereof. The payment Agent with shall invest portions of the Payment Fund as Parent directs. All interest and other income earned in respect of the Payment Fund shall inure to such shares of Parent Common Stockthe benefit of, are referred to collectively and shall be paid to, the Surviving Corporation. The Payment Fund shall not be used for any purpose except as the “Exchange Fundexpressly provided in this Agreement.”
(b) Promptly As soon as practicable after the Effective Time, Parent and the Surviving Corporation shall cause the Exchange Payment Agent to mail to each record holder of one or more certificates (the Persons who were record holders of Company Stock Certificates or Book Entry Shares "Certificates") that immediately prior to the Effective Time: Time represented outstanding Shares and associated Rights that have been converted pursuant to Section 2.5(a) into the right to receive the Per Share Price (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably (which shall specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock the Certificates or Book Entry Shares shall pass, only upon delivery receipt of the Certificates by the Payment Agent and shall be in such Company Stock Certificates or Book Entry Shares to form and have such other provisions as the Exchange Agent); Surviving Corporation may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Stock the Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Per Share Price. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Payment Agent for exchangecancellation, together with a duly executed such letter of transmittal duly executed and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) completed in accordance with its terms, the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receivereceive in exchange therefor a check representing the Per Share Price for each Share represented thereby, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall forthwith be canceled. In no event shall the holder of any Certificate be entitled to receive interest on any funds to be received by reason of the Merger, including any interest earned by the Payment Fund. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, the Per Share Price may be paid to a transferee if the Certificate representing such Shares is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.7(b)Section, each Company Stock Certificate and Book Entry Share shall be deemed, from and deemed after the Effective Time, Time to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) upon such surrender the Per Share Price for each Share represented thereby as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificatethis Article II.
(c) No dividends or other distributions declared or made All cash paid upon the surrender for exchange of Certificates in accordance with respect the terms hereof shall be deemed to Parent Common Stock with a record date have been paid in full satisfaction of all rights pertaining to the Shares and the Rights represented thereby. From and after the Effective Time Time, the stock transfer books of the Company shall be paid or otherwise delivered closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect Effective Time. If, after the Effective Time, Certificates are presented to the shares of Parent Common Stock that such holder has the right to receive Surviving Corporation for any reason, they shall be canceled and exchanged as provided in this Section, subject in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect case of applicable abandoned property, escheat or similar lawsDissenting Shares, to receive all such dividends applicable law and distributions, without interest)the provisions of this Agreement.
(d) Any portion of the Exchange Payment Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of unclaimed by the date that is one year Company's shareholders six months after the date on which the Merger becomes effective Effective Time shall be delivered to Parent the Surviving Corporation upon demand, and any holders of Company Stock Certificates or Book Entry Shares the Company's shareholders who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance complied with this Section 1.7 shall thereafter look only to Parent forthe Surviving Corporation (subject to abandoned property, escheat and be entitled to receive from Parent, satisfaction other similar laws) as general creditors for payment of their claims claim for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common Stock.
(e) the Per Share Price. Neither Parent nor the Surviving Corporation shall be liable to any holder of Shares for cash representing the Per Share Price delivered to a public official in accordance with any applicable abandoned property, escheat or former holder similar law.
(e) The Surviving Corporation shall be entitled to deduct and withhold from the Per Share Price or any payment made in respect of Company Common Stock or Dissenting Shares such amounts as the Surviving Corporation is required to any other Person deduct and withhold with respect to any shares the making of Parent Common Stock such payment under the Internal Revenue Code of 1986, as amended (or dividends or distributions with respect theretothe "Code"), or any CVRs provision of state, local or foreign tax law. Such withheld amounts shall be treated for any cash amounts, delivered all purposes of this Agreement as having been paid to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirementthe holder of the Shares in respect of which such deduction and withholding was made.
Appears in 1 contract
Samples: Merger Agreement (Delchamps Inc)
Exchange of Certificates. (a) Prior to the ClosingClosing Date, Parent shall select a reputable bank or bank, trust company reasonably satisfactory to the Company or agent to act as exchange paying agent in the Merger (the “Exchange Agent”) and shall enter into an agreement that is reasonably acceptable to the Company with (the Exchange “Paying Agent”). The Paying Agent relating agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and substance reasonably acceptable to the services Company. Prior to be performed by the Exchange Agent. At the ClosingEffective Time, subject to Section 1.8, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash sufficient to make payments of the Merger Consideration payable pursuant to Section 1.5 (other than payments of any Restricted Share Merger Consideration with respect to which there is a Tax withholding obligation) (such deposits, collectively, the “Payment Fund”). The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in lieu short-term liquid obligations of fractional shares the United States or guaranteed by the United States and backed by the full faith and credit of the United States. Any earnings from such investments shall be the sole and exclusive property of Parent and the Surviving Corporation, and no part of such earnings shall accrue to the benefit of holders of Company Common Stock. No investment of the Payment Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Section 1, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent to the extent and in the amount necessary to satisfy Parent and the Surviving Corporation’s payment obligations under this Section 1, which additional funds will be deemed to be part of the Payment Fund. Following the Effective Time, Parent shall retain cash sufficient to make, or cause to be made, payments of the Restricted Share Merger Consideration payable pursuant to Section 1.5(b) with respect to which there is a Tax withholding obligation in accordance with Section 1.5(c1.7(g). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause but in no event later than five Business Days following the Exchange Closing Date, the Paying Agent to will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Uncertificated Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior agree to the Effective Time specify (including a provision confirming that delivery of Company Stock Certificates or Book Entry transfer of Uncertificated Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Uncertificated Shares shall pass, only upon proper delivery of such Company Stock Certificates or Book Entry transfer of the Uncertificated Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry transfer of Uncertificated Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)Merger Consideration. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchangeexchange (or compliance with the reasonable procedures established by the Paying Agent for transfer of Uncertificated Shares), together with the delivery of a duly executed letter of transmittal and such other documents as may be reasonably and customarily required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Uncertificated Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs cash consideration that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash 1.5, in lieu full satisfaction of any fractional share all rights pertaining to the shares of Parent Company Common Stock pursuant to Section 1.5(c) and any dividends formerly represented by such Company Stock Certificate or other distributions pursuant to Section 1.7(c))Uncertificated Shares; and (B) the Company Stock Certificate or Book Entry Uncertificated Shares so surrendered or transferred shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares or Uncertificated Shares is registered if: (1) any such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer; and (2) such holder shall have paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Merger Consideration to a Person other than such holder (or shall have established to the reasonable satisfaction of Parent that such bonds and Taxes have been paid or are not applicable). Until surrendered or transferred as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry each Uncertificated Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) Merger Consideration as contemplated by Section 1.5. 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 payment of any non-certificated Merger Consideration with respect to the shares of Parent Company Common Stock in book entry form and CVRspreviously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond in a reasonable and customary indemnification obligation amount as indemnity against any claim that may be made against the Exchange Paying Agent, Parent Parent, Merger Sub 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 Effective Time interest shall be paid or otherwise delivered to the holder of will accrue on any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed Consideration payable to holders of Company Stock Certificates and Book Entry Shares or in respect of Uncertificated Shares.
(c) Any portion of the Payment Fund that remains undistributed to former holders of shares of Company Common Stock as of the date that is one year after the date on which the Merger becomes effective shall be delivered by the Paying Agent to Parent upon demand, and any former holders of shares of Company Common Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates Certificates, or Book Entry Shares complied with the procedures established by the Paying Agent for transfer of Uncertificated Shares, in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common StockMerger Consideration.
(d) Each of the Paying Agent, CVRsParent, cash in lieu Merger Sub 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 fractional shares of Parent Company Common Stock pursuant or holder of any Company Restricted Stock such amounts as are required to Section 1.5(c)be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax Law or under any other applicable Law. To the extent such amounts are so deducted or withheld and any dividends or distributions with respect remitted to shares of Parent Common Stockthe appropriate Taxing Authority, 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.
(e) Neither Parent nor If any Company Stock Certificate has not been surrendered, or any Uncertificated Share has not been transferred, by the day immediately prior to the date on which the cash amount that such Company Stock Certificate or Uncertificated Share represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such cash amount shall, to the extent permitted by applicable Laws, become the property of the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
(f) None of Parent, Merger Sub, the Surviving Corporation or the Paying Agent 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), any CVRs or for any cash amounts, Merger Consideration properly delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirementsimilar Law.
(g) Promptly after the Effective Time, but in no event later than 15 Business Days following the Closing Date, Parent shall cause to be paid, through Parent’s or the Surviving Corporation’s standard payroll practices, to each holder of a share of Company Restricted Stock with respect to which there is a Tax withholding obligation, the applicable Restricted Share Merger Consideration, without interest.
Appears in 1 contract
Exchange of Certificates. (a) Prior On or prior to the ClosingClosing Date, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable ). Subject to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the ClosingSection 1.8, Parent shall issue and use reasonable efforts to cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent promptly after the Effective Time on the Closing Date, but in no event later than one Business Day following the Closing Date, cash sufficient to make payments of the Merger Consideration payable pursuant to Section 1.5, other than payments of the Merger Consideration that may become payable pursuant to Section 1.5(b) (the “Payment Fund”). The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in lieu short-term obligations of fractional shares the United States with maturities of no more than 30 days or guaranteed by the United States and backed by the full faith and credit of the United States. No investment of the Payment Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Section 1, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent in the amount of such losses to the extent the funds in the Payment Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Payment Fund. Following the Effective Time, Parent shall retain cash sufficient to make, or cause to be made, payments of the Merger Consideration payable to the former holders of Company Restricted Stock pursuant to Section 1.5(b) in accordance with Section 1.5(c1.5(b). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Paying Agent to will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Uncertificated Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry transfer of Uncertificated Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Uncertificated Shares shall pass, only upon proper delivery of such Company Stock Certificates or Book Entry transfer of the Uncertificated Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry transfer of Uncertificated Shares in exchange for non-certificated shares Merger Consideration. The form and substance of such letter of transmittal and instructions shall be as reasonably agreed to by Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant the Company prior to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Effective Time. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchangeexchange (or compliance with the reasonable procedures established by the Paying Agent for transfer of Uncertificated Shares), together with the delivery of a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Uncertificated Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs cash consideration that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash 1.5, in lieu full satisfaction of any fractional share all rights pertaining to the shares of Parent Company Common Stock pursuant to Section 1.5(c) and any dividends formerly represented by such Company Stock Certificate or other distributions pursuant to Section 1.7(c))Uncertificated Shares; and (B) the Company Stock Certificate or Book Entry Uncertificated Shares so surrendered or transferred shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares or Uncertificated Shares is registered if: (1) any such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer; and (2) such holder shall have paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Merger Consideration to a Person other than such holder (or shall have established to the reasonable satisfaction of Parent that such bonds and Taxes have been paid or are not applicable). Until surrendered or transferred as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry each Uncertificated Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) Merger Consideration as contemplated by Section 1.5. 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 payment of any non-certificated Merger Consideration with respect to the shares of Parent Company Common Stock in book entry form and CVRspreviously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond (in such sum as Parent may direct) as indemnity against any claim that may be made against the Exchange Paying Agent, Parent Parent, Merger Sub 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 Effective Time interest shall be paid or otherwise delivered to the holder of will accrue on any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed Consideration payable to holders of Company Stock Certificates and Book Entry Shares or in respect of Uncertificated Shares.
(c) Any portion of the Payment Fund that remains undistributed to former holders of shares of Company Common Stock as of the date that is one year 180 days after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any former holders of shares of Company Common Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates Certificates, or Book Entry Shares complied with the procedures established by the Paying Agent for transfer of Uncertificated Shares, in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common StockMerger Consideration.
(d) Each of the Paying Agent, CVRsParent, cash in lieu Merger Sub 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 fractional shares of Parent Company Common Stock pursuant or any Company Equity Award such amounts as may be required to Section 1.5(c)be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and any dividends or distributions with respect paid over to shares of Parent Common Stockthe proper Governmental Body, 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.
(e) Neither Parent nor If any Company Stock Certificate has not been surrendered, or any Uncertificated Share has not been transferred, by the earlier of: (i) the fifth anniversary of the date on which the Merger becomes effective; and (ii) the date immediately prior to the date on which the cash amount that such Company Stock Certificate or Uncertificated Share represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such cash amount shall, to the extent permitted by applicable Legal Requirements, become the property of the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
(f) None of Parent, Merger Sub, the Surviving Corporation or the Paying Agent 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), any CVRs or for any cash amounts, Merger Consideration delivered to any public official pursuant to any applicable abandoned property law, escheat law or other similar Legal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Closing, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Paying Agent relating to the services to be performed by the Exchange Paying Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash sufficient to make payments in lieu of fractional shares the Cash Consideration and the Preferred Stock Merger Consideration in accordance with Section 1.5(c1.8(a)(iii). The shares of Parent Common Stock and cash amounts amount so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Paying Agent with respect to such shares of Parent Common Stock, are is referred to collectively as the “Exchange Payment Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Paying Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: Time whose shares were converted into the right to receive the Offer Price and the Preferred Stock Merger Consideration, as applicable, in accordance with Section 1.8(a)(iii): (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common the Offer Price or the Preferred Stock in book entry formMerger Consideration, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)as applicable. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Paying Agent shall (and Parent shall cause the Exchange Paying Agent to) in exchange therefor transfer from the Exchange Payment Fund to such holder the number of whole shares of Parent Common Offer Price or the Preferred Stock and CVRs Merger Consideration (as applicable) that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))1.8; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b1.10(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common the Offer Price or the Preferred Stock and CVRs Merger Consideration (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(cas applicable)) , as contemplated by Section 1.51.8. As promptly as practicable after the Effective Time, the Paying Agent shall issue and deliver to each holder of Book Entry Shares a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 1.8 in respect of such Book Entry Shares, without such holder being required to deliver a stock certificate to the Paying Agent; provided that an “agent’s message” has been previously delivered to the Paying Agent regarding such Book Entry Shares, and such Book Entry Shares shall then cease to represent any right to receive the Offer Price or the Preferred Stock Merger Consideration (as applicable) hereunder. No interest shall be paid or accrued on the Offer Price or the Preferred Stock Merger Consideration (as applicable) payable to holders of Book Entry Shares or Company Stock Certificates. If any Offer Price or the Preferred Stock Merger Consideration (as applicable) is to be paid to a Person other than a Person in whose name the Book Entry Share or Company Stock Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Offer Price or the Preferred Stock Merger Consideration, as applicable, to a Person other than the registered holder of the Book Entry Share or Company Stock Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance payment of any non-certificated shares of Parent Common the Offer Price or the Preferred Stock in book entry form and CVRsMerger Consideration, as applicable, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Paying Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) No dividends The Payment Fund shall be invested by the Paying Agent as directed by Parent, or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time Time, the Surviving Corporation; provided that any such investments shall be in securities issued or directly and fully guaranteed or insured as to principal and interest by the United States government or any agency or instrumentality thereof and having maturities of not more than one month from the date of investment. Earnings on the Payment Fund shall be the sole and exclusive property of the Surviving Corporation and shall be paid or otherwise delivered to the holder Surviving Corporation. No investment of the Payment Fund shall relieve any unsurrendered Company Stock Certificate of Parent, the Surviving Corporation or Book Entry Share with respect the Paying Agent from making the payments required by Section 1.8, and following any losses from any such investment, Parent shall promptly provide, or shall cause to be promptly provided, additional funds to the shares Paying Agent for the benefit of Parent the holders of the Company Common Stock that such holder has or the right to receive Series C Preferred Stock, as applicable, at the Effective Time in the Merger until amount of such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at losses, which time such holder additional funds shall be entitled, subject deemed to be part of the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest)Payment Fund.
(d) The Offer Price and Preferred Stock Merger Consideration paid upon the surrender of Company Stock Certificates or transfer of Book Entry Shares, as applicable, in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Company Common Stock or Series C Preferred Stock, as applicable formerly represented by such Company Stock Certificates or Book Entry Shares, as applicable, and from and after the Effective Time, there shall be no further registration of transfers of the Company Common Stock or the Series C Preferred Stock, as applicable, on the stock transfer books of the Surviving Corporation. If, after the Effective Time, the Company Stock Certificates or Book Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Offer Price and Preferred Stock Merger Consideration, as applicable, provided for, and in accordance with the procedures set forth, in this Section 1.10.
(e) Any portion of the Exchange Payment Fund (including the proceeds of any investments thereof) that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 1.10 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stockpayment of the Offer Price or the Preferred Stock Merger Consideration, CVRsas applicable (subject to abandoned property, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(cescheat or other similar laws), and any dividends or distributions with respect to shares of Parent Common Stockwithout interest.
(ef) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock or Series C Preferred Stock or to any other Person with respect to any shares of Parent Common the Offer Price or the Preferred Stock (or dividends or distributions with respect thereto)Merger Consideration, any CVRs as applicable, or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement. If any Company Stock Certificate or Book Entry Share shall not have been surrendered prior to the date on which the Offer Price or Preferred Stock Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Body, any such Offer Price or Preferred Stock Merger Consideration in respect of such Company Stock Certificate or Book Entry Share shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, and any holder of such Company Stock Certificate or Book Entry Share who has not theretofore complied with this Section 1.10 with respect thereto shall thereafter look only to the Surviving Corporation for payment of its claim for the Offer Price or Preferred Stock Merger Consideration, as applicable, in respect thereof.
Appears in 1 contract
Samples: Merger Agreement (Innoviva, Inc.)
Exchange of Certificates. (a) Prior On or prior to the ClosingClosing Date, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) ). Promptly after the Effective Time (and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the Closingin any event within one business day thereafter), Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash sufficient to make payments in lieu of fractional shares in accordance with the cash consideration payable pursuant to Section 1.5(c1.5 (the “Payment Fund”). The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, that (i) no such investment of or losses thereon shall relieve Parent from making the payments required by this Section 1, or affect the amount of Merger Consideration payable in respect of the shares of Company Common Stock, and following any losses Parent Common Stock shall promptly provide additional funds to the Paying Agent in the amount of any such losses, and cash (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement. Any and all interest or other amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent earned with respect to such funds shall become part of the Payment Fund, and any amounts in excess of the amounts payable under this Agreement shall be promptly returned to either Parent or the Surviving Corporation. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of shares of Parent Company Common Stock, are referred to collectively as Stock and the “Exchange Fundpayment of the Merger Consideration in respect of such shares.”
(b) Promptly after the Effective TimeTime (and in any event within five business days thereafter), Parent shall cause the Exchange Paying Agent to will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or to the Paying Agent or, in the case of Book Entry Shares Shares, upon adherence to the Exchange Agent)procedures set forth in the letter of transmittal) and in such form reasonably acceptable to the Company; and (ii) instructions for use in effecting the surrender of Company Stock Certificates or and Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu Merger Consideration. Exchange of any fractional share of Parent Common Stock pursuant Book Entry Shares shall be effected in accordance with the Paying Agent’s customary procedures with respect to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)securities represented by book entry. Upon surrender of a Company Stock Certificate or Book Entry Shares Share to the Exchange Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or ParentPaying Agent: (A) the holder of such Company Stock Certificate or Book Entry Shares Share shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs cash consideration that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash 1.5, in lieu full satisfaction of any fractional share all rights pertaining to the shares of Parent Company Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))formerly represented by such Company Stock Certificate; and (B) the Company Stock Certificate or Book Entry Shares Share so surrendered shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate or Book Entry Share formerly representing such shares is registered if (1) any such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and (2) such holder shall have paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Merger Consideration to a Person other than such holder (or shall have established to the reasonable satisfaction of Parent that such bonds and Taxes have been paid or are not applicable). Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and or Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) Merger Consideration as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent or the Paying Agent may, in its reasonable discretion and as a condition precedent to the issuance delivery of any non-certificated Merger Consideration with respect to the shares of Parent Company Common Stock in book entry form and CVRspreviously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond (in such sum as Parent or the Paying Agent may determine is reasonably necessary) as indemnity against any claim that may be made against the Exchange Paying Agent, Parent Parent, Merger Sub or the Surviving Corporation with respect to such Company Stock Certificate. No interest shall be paid or will accrue on any cash payable to holders of Company Stock Certificates or Book Entry Shares pursuant to the provisions of this Section 1.7.
(c) 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 or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Payment Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year 270 days after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Merger Consideration.
(d) Each of the Paying Agent, Parent Common Stock, CVRs, cash in lieu 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 fractional shares of Parent Company Common Stock pursuant or a Company Equity Award such amounts as may be required to Section 1.5(c)be deducted or withheld from such consideration under the Code or any provision of state, and local or foreign tax law or under any dividends other applicable Legal Requirement. To the extent such amounts are so deducted or distributions with respect withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to shares of Parent Common Stockthe Person to whom such amounts would otherwise have been paid.
(e) Neither Parent nor If any Company Stock Certificate or Book Entry Share has not been surrendered by the earlier of: (i) the fifth anniversary of the date on which the Merger becomes effective; or (ii) the date immediately prior to the date on which the cash amount that such Company Stock Certificate or Book Entry Share represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such cash amount shall, to the extent permitted by applicable Legal Requirements, become the property of the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
(f) None of Parent, the Surviving Corporation and the Paying Agent 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), any CVRs or for any cash amounts, Merger Consideration delivered to any public official pursuant to any applicable abandoned property law, escheat law or other similar Legal Requirement.
Appears in 1 contract
Samples: Merger Agreement (XOOM Corp)
Exchange of Certificates. (a) Paying Agent. Prior to the Effective Time, Parent shall (i) appoint a bank or trust company approved (such approval not to be unreasonably withheld, conditioned or delayed) in advance by the Company (the “Paying Agent”), and(i) enter into a paying agent agreement, in form and substance reasonably acceptable to the Company, with such Paying Agent for the payment of the Merger Consideration in accordance with this Article II. At or prior to the Closing, Parent shall select a reputable bank deposit, or trust company reasonably satisfactory to cause the Surviving Company to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company deposit, with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Paying Agent, together with any dividends or distributions received by for the Exchange Agent with respect to such shares benefit of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares issued and outstanding immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock an amount sufficient to pay the aggregate Merger Consideration required to be paid pursuant to Section 1.5(c2.01(a) and any dividends or other distributions pursuant (such cash being hereinafter referred to Section 1.7(cas the “Payment Fund”). Upon surrender The Payment Fund shall not be used for any other purpose. The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that such investments shall be in obligations of or guaranteed by the United States of America or any agency or instrumentality thereof and backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank which are then publicly available), or a Company Stock Certificate combination of the foregoing. Any net profit resulting from, or Book Entry Shares interest or income produced by, such investments shall be payable to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by Surviving Company. To the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs extent that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation there are losses with respect to such Company Stock Certificate.
(c) No dividends investments, or the Payment Fund diminishes for other distributions declared or made with respect reasons below the level required to Parent Common Stock with a record date after the Effective Time shall be paid or otherwise delivered to the holder make prompt payments of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate Consideration as contemplated hereby, Parent shall promptly replace or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to restore the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Payment Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common Stock.
(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 Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law lost through investments or other Legal Requirementevents so as to ensure that the Payment Fund is, at all times, maintained at a level sufficient to make such payments.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Closing, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Paying Agent relating to the services to be performed by the Exchange Paying Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash sufficient to make payments in lieu of fractional shares the Cash Consideration in accordance with Section 1.5(c1.8(a)(iii). The shares of Parent Common Stock and cash amounts amount so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Paying Agent with respect to such shares of Parent Common Stock, are is referred to collectively as the “Exchange Payment Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Paying Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Offer Price. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Paying Agent shall (and Parent shall cause the Exchange Paying Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs Offer Price that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))1.8; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b1.10(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) the Offer Price as contemplated by Section 1.51.8. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance payment of any non-certificated shares of Parent Common Stock in book entry form and CVRsOffer Price, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Paying 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 record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, 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 and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 1.10 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stockpayment of the Offer Price (subject to abandoned property, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(cescheat or other similar laws), and any dividends or distributions with respect to shares of Parent Common Stockwithout interest.
(ed) 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), any CVRs Offer Price or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Closing, The Parent Parties shall select appoint a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) for the payment and shall enter into an agreement reasonably acceptable to delivery of the Merger Consideration, the Preferred Merger Consideration and the Company with OP Unit Consideration, as provided in Section 3.1(b) and Section 3.1(c) and Section 3.2(a). The paying agent agreement pursuant to which the Exchange Parent Parties shall appoint the Paying Agent relating (the “Paying Agent Agreement”) will be in a form and substance reasonably satisfactory to the services to be performed by the Exchange AgentCompany. At or before the ClosingParent Merger Effective Time, the Parent Parties shall issue and deposit, or cause to be deposited deposited, with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash in immediately available funds in an amount sufficient to make payments in lieu of fractional shares pay the aggregate Merger Consideration, Preferred Merger Consideration and Company OP Unit Consideration in accordance with Section 1.5(c3.1(b). The , Section 3.1(c) and Section 3.2(a) (the “Payment Fund”), in each case, for the sole benefit of the holders of shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Company Common Stock, are referred shares of Company Preferred Stock and Company OP Common Units, as applicable. The Parent Parties shall cause the Paying Agent to collectively as make, and the “Exchange FundPaying Agent shall make, delivery of the Merger Consideration, Preferred Merger Consideration and the Company OP Unit Consideration out of the Payment Fund in accordance with this Agreement. The Payment Fund shall not be used for any purpose other than to fund payments due pursuant to this Article III.”
(b) Promptly after The Payment Fund shall be invested by the Paying Agent in accordance with the Paying Agent Agreement. Interest and other income on the Payment Fund shall be the sole and exclusive property of the Parent Parties. No investment of the Payment Fund shall relieve the Parent Parties or the Paying Agent from making the payments required by this Article III, and, following any losses from any such investment, the Parent Parties shall promptly provide additional funds to the Paying Agent to the extent necessary to satisfy the Parent Parties’ obligations hereunder for the benefit of the holders of shares of Company Common Stock, Company Preferred Stock and holders of Company OP Common Units at the Parent Merger Effective Time, Parent shall cause the Exchange Agent which additional funds will be deemed to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c). Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be 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 record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion part of the Exchange Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common StockPayment Fund.
(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 Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Closing, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to (as defined below) shall mail to the Persons who were each holder of record holders of Company Common Stock Certificates or Book Entry Shares immediately prior to the Effective Time: Time (other than Excluded Shares) (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably (the "Company Letter of Transmittal") (which shall specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to the Company certificates representing shares of the Company Common Stock Certificates or Book Entry Shares (the "Certificates") shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); Agent and shall be in such form and have such other provisions as Parent shall reasonably specify) and (ii) instructions for use in effecting the surrender of Company Stock the Certificates or Book Entry Shares in exchange for non-certificated the Merger Consideration with respect to the shares of Parent Company Common Stock in book entry form, CVRsformerly represented thereby.
(b) Prior to or contemporaneously with the Effective Time, and cash subject to Section 4.5, Parent shall cause to be deposited with the party specified by Parent as the exchange agent (the "Exchange Agent") amounts sufficient in lieu of any fractional share of Parent Common Stock the aggregate to provide all funds necessary for the Exchange Agent to make payments pursuant to Section 1.5(c2.1(a)(i) hereof to holders of Company Common Stock issued and any dividends outstanding immediately prior to the Effective Time who are to receive the Merger Consideration. Any interest, dividends, or other distributions pursuant income earned on the investment of cash deposited by Parent with the Exchange Agent in accordance with this Section 2.2(b) shall be for the account of and payable to Section 1.7(c)Parent. Upon surrender of a Prior to the Effective Time, the Company Stock Certificate or Book Entry Shares shall transfer to the Exchange Agent cash in the amount of $165 million to be held by the Exchange Agent for exchangethe account of the Company but to be transferred to the Exchange Agent as part of the Merger Consideration at the Effective Time
(c) Upon surrender to the Exchange Agent of Certificates, together with a the Company Letter of Transmittal, duly executed letter and completed in accordance with the instructions thereto, and only upon such surrender, the holder of transmittal such Certificate shall be entitled to receive, in exchange therefor, and Parent shall promptly cause to be delivered by the Exchange Agent to such holder, a check in the amount to which such holder is entitled, after giving effect to any required tax withholdings. The Certificates surrendered pursuant to this Section 2.2(c) shall forthwith be cancelled. If any Certificate shall have been lost, stolen, mislaid or destroyed, then upon receipt of an affidavit of that fact from the holder claiming such Certificate to be lost, mislaid, stolen or destroyed and a lost certificate indemnity, the Exchange Agent shall issue to such holder the Merger Consideration into which the shares represented by such lost, stolen, mislaid or destroyed Certificate shall have been converted.
(d) No interest will be paid or will accrue on the amount payable upon the surrender of any Certificate. If payment is to be made to a person other documents than the registered holder of the Certificate surrendered, it shall be a condition of such payment that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, as may be reasonably required determined by the Exchange Agent or Parent: (A) , and that the person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Parent or the Exchange Agent that such Company Stock Certificate tax has been paid or Book Entry Shares is not payable. One hundred eighty (180) days following the Effective Time, Parent shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent toto deliver to it any funds (including any interest received with respect thereto) in exchange therefor transfer from made available to the Exchange Fund Agent which have not been disbursed to such holder holders of the number of whole Certificates formerly representing shares of Parent Company Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after outstanding on the Effective Time, and thereafter such holders shall be entitled to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition look to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation only as general creditors thereof 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 cash payable upon due surrender of their Certificates. Any amounts remaining unclaimed by the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed to holders of Company Common Stock Certificates and Book Entry Shares as five (5) business days immediately prior to such time the amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the date that is one year after extent permitted by applicable law, the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares property of Parent Common Stock pursuant to Section 1.5(c), free and clear of any dividends claims or distributions with respect to shares interest of Parent Common Stockany person previously entitled thereto.
(e) Neither Parent nor In the Surviving Corporation shall be liable to any holder or former holder event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of the Company, the Merger Consideration may be paid or issued to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate, accompanied by all documents required to evidence and effect such transfer, shall be properly endorsed with signature guarantees or otherwise be in proper form for transfer, and the person requesting such payment shall pay any transfer or other Person 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 satisfaction of Parent that such tax has been paid or is not applicable.
(f) The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with respect the terms of this Article II shall be deemed to any have been paid and issued in full satisfaction of all rights pertaining to the shares of Parent Company Common Stock (or dividends or distributions with respect thereto)theretofore represented by such Certificates. At the Effective Time, any CVRs or for any cash amountsthe stock transfer books of the Company shall be closed, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirementand there shall be no further registrations of transfers of shares of Company Common Stock thereafter on the records of the Company.
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Exchange of Certificates. (a) Prior to the ClosingEffective Time, the Parent shall select a reputable bank or appoint the Paying Agent and authorize the Paying Agent to receive in trust company reasonably satisfactory the funds to which stockholders of the Company to act as exchange agent in shall become entitled upon surrender of the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares certificates in accordance with this Section 1.5(c)1.10. The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends At or distributions received by the Exchange Agent with respect prior to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause to be deposited with the Exchange Paying Agent to mail to the Persons who were record aggregate amount necessary for payment in full of all consideration that holders of Company Common Stock Certificates and Eligible Options are entitled to receive pursuant to Section 1.9 and Section 1.13, respectively, to be held for the benefit of, and distribution to, such holders in accordance with this Agreement. The Paying Agent shall agree to hold such funds (the "PAYMENT FUND") for delivery as contemplated by this Section 1.10. The Payment Fund shall be invested as directed by Parent or Book Entry Shares the Surviving Corporation pending payment thereof by the Paying Agent to holders of Company Common Stock and Eligible Options. Earnings from such investments in excess of the aggregate Merger Consideration shall be the sole and exclusive property of the Surviving Corporation, and no part of such earnings shall accrue to the benefit of the holders of Company Common Stock or Eligible Options. If for any reason (including losses) the Payment Fund is inadequate to pay the cash amounts to which holders of shares of Company Common Stock and Eligible Options shall be entitled, Parent and the Surviving Corporation Shall in all events remain liable for the payment thereof and Parent shall take all steps necessary to enable and cause the Surviving Corporation to provide to the Paying Agent on a timely basis, as and When needed after the Effective Time, cash necessary to pay for the shares of Company Common Stock converted into the right to receive cash pursuant to Section 1.9 and to pay the cash amount due to holders of Eligible Options pursuant to Section 1.13. The Payment Fund shall not be used for any purpose except as expressly provided in this Agreement.
(b) As soon as reasonably practicable after the Effective Time, but in no event later than ten (10) Business Days thereafter, the Paying Agent shall mail to each holder of record of a certificate that immediately prior to the Effective Time: Time represented shares of Company Common Stock (other than Parent, any Affiliate of Parent, the Company, any Subsidiary of the Company and any holder of Dissenting Shares): (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably (a "LETTER OF TRANSMITTAL"), which Letter of Transmittal shall specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares each such certificate shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares certificates to the Exchange Paying Agent), and contain such other provisions as the Company and Parent may reasonably specify; and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares surrendering such certificates in exchange for non-certificated shares of Parent Common Stock in book entry formMerger Consideration. Thereafter, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c). Upon upon surrender of a certificate representing Company Common Stock Certificate or Book Entry Shares for cancellation to the Exchange Agent for exchangePaying Agent, together with a Letter of Transmittal, duly executed letter of transmittal executed, and EXECUTION COPY such other documents as may reasonably be reasonably required by the Exchange Agent or Parent: (A) Paying Agent, the holder of such certificate shall (subject to applicable abandoned property, escheat and similar Laws) receive in exchange therefor the amount of cash equal to the product of (x) the Merger Consideration and (y) the number of shares of Company Common Stock Certificate or Book Entry Shares shall be entitled to receiverepresented by such certificate, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares certificate so surrendered shall be canceled. Until If a transfer of ownership of shares of Company Common Stock has not been registered in the transfer records of the Company, payment may be made to a Person other than the Person in whose name the certificate so surrendered as contemplated by this Section 1.7(b), each Company Stock is registered if such Certificate and Book Entry Share shall be deemedproperly 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 to a Person other than the registered holder of such certificate or establish to the satisfaction of the Parent that such Taxes have been paid or are not applicable.
(c) All cash paid upon the surrender of certificates representing Company Common Stock 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 Common Stock theretofore represented by such certificates, from subject, however, to the Surviving Corporation's obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time that may have been declared or made by the Company on such shares of Company Common Stock and that remain unpaid at the Effective Time. If, after the Effective Time, to represent only the right to receive shares of Parent certificates representing Company Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant are presented to Section 1.5(c)) as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificateor the Paying Agent for any reason, they shall be canceled and exchanged as provided in this Article I, except as otherwise provided by Law.
(cd) No dividends None of the Parent, Merger Sub, the Company, the Surviving Corporation or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time Paying Agent shall be paid or otherwise liable to any Person in respect of any cash delivered to the holder of a public official pursuant to any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar lawsLaw. No Person previously entitled to any amounts payable pursuant to this Article I shall have any claim to such amount to the extent such amount has escheated or become the property of, and paid to, any Governmental Entity. At any time following six months after the Effective Time, the Surviving Corporation shall be entitled to receive all such dividends require that the Paying Agent deliver to it any funds (including any earnings received with respect thereto) that had been made available to the Paying Agent and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed have not been disbursed to holders of certificates representing Company Common Stock Certificates or holders of Eligible Options, and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective thereafter such holders shall be delivered entitled to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent forthe Surviving Corporation (subject to abandoned property, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends escheat or distributions other similar Laws) as general creditors thereof with respect to shares the Merger Consideration payable upon due surrender of Parent Common Stocktheir certificates.
(e) Neither Parent nor The Paying Agent shall be authorized to pay the Merger Consideration attributable to any Certificate(s) representing Company Common Stock that have been lost, stolen or destroyed upon receipt of evidence of ownership of the Company Common Stock represented thereby and of appropriate indemnification and/or bond in each case reasonably satisfactory to the Surviving Corporation Corporation.
(f) The Parent, the Surviving Corporation, and the Paying Agent shall be liable entitled to deduct and withhold from amounts otherwise payable pursuant to this Agreement to any holder or former holder of certificates previously representing Company Common Stock or to any other Person holder of Eligible Options such amounts as the Parent, the Surviving Corporation, or the Paying Agent, respectively, reasonably determines is required to be deducted and withheld with respect to any shares the making of Parent Common Stock such payment under the Internal Revenue Code of 1986, as amended (or dividends or distributions with respect theretothe "CODE"), or EXECUTION COPY any CVRs provision of state, local or foreign Tax Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for any cash amountsall purposes of this Agreement as having been paid to the holder of such certificates or of such Eligible Options in respect of which such deduction and withholding was made by the Parent, delivered to any public official pursuant to any applicable abandoned property lawthe Surviving Corporation, escheat law or other Legal Requirementthe Paying Agent.
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Exchange of Certificates. (a) Prior to the ClosingEffective Time, the Parent shall select a reputable bank or appoint the Paying Agent and authorize the Paying Agent to receive in trust company reasonably satisfactory the funds to which stockholders of the Company to act as exchange agent in shall become entitled upon surrender of the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares certificates in accordance with this Section 1.5(c)1.10. The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends At or distributions received by the Exchange Agent with respect prior to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause to be deposited with the Exchange Paying Agent to mail to the Persons who were record aggregate amount necessary for payment in full of all consideration that holders of Company Common Stock Certificates and Eligible Options are entitled to receive pursuant to Section 1.9 and Section 1.13, respectively, to be held for the benefit of, and distribution to, such holders in accordance with this Agreement. The Paying Agent shall agree to hold such funds (the "Payment Fund") for delivery as contemplated by this Section 1.10. The Payment Fund shall be invested as directed by Parent or Book Entry Shares the Surviving Corporation pending payment thereof by the Paying Agent to holders of Company Common Stock and Eligible Options. Earnings from such investments in excess of the aggregate Merger Consideration shall be the sole and exclusive property of the Surviving Corporation, and no part of such earnings shall accrue to the benefit of the holders of Company Common Stock or Eligible Options. If for any reason (including losses) the Payment Fund is inadequate to pay the cash amounts to which holders of shares of Company Common Stock and Eligible Options shall be entitled, Parent and the Surviving Corporation shall in all events remain liable for the payment thereof and Parent shall take all steps necessary to enable and cause the Surviving Corporation to provide to the Paying Agent on a timely basis, as and when needed after the Effective Time, cash necessary to pay for the shares of Company Common Stock converted into the right to receive cash pursuant to Section 1.9 and to pay the cash amount due to holders of Eligible Options pursuant to Section 1.13. The Payment Fund shall not be used for any purpose except as expressly provided in this Agreement.
(b) As soon as reasonably practicable after the Effective Time, but in no event later than ten (10) Business Days thereafter, the Paying Agent shall mail to each holder of record of a certificate that immediately prior to the Effective Time: Time represented shares of Company Common Stock (other than Parent, any Affiliate of Parent, the Company, any Subsidiary of the Company and any holder of Dissenting Shares): (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably (a "Letter of Transmittal"), which Letter of Transmittal shall specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares each such certificate shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares certificates to the Exchange Paying Agent), and contain such other provisions as the Company and Parent may reasonably specify; and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares surrendering such certificates in exchange for non-certificated shares of Parent Common Stock in book entry formMerger Consideration. Thereafter, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c). Upon upon surrender of a certificate representing Company Common Stock Certificate or Book Entry Shares for cancellation to the Exchange Agent for exchangePaying Agent, together with a Letter of Transmittal, duly executed letter of transmittal executed, and such other documents as may reasonably be reasonably required by the Exchange Agent or Parent: (A) Paying Agent, the holder of such certificate shall (subject to applicable abandoned property, escheat and similar Laws) receive in exchange therefor the amount of cash equal to the product of (x) the Merger Consideration and (y) the number of shares of Company Common Stock Certificate or Book Entry Shares shall be entitled to receiverepresented by such certificate, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares certificate so surrendered shall be canceled. Until If a transfer of ownership of shares of Company Common Stock has not been registered in the transfer records of the Company, payment may be made to a Person other than the Person in whose name the certificate so surrendered as contemplated by this Section 1.7(b), each Company Stock is registered if such Certificate and Book Entry Share shall be deemedproperly 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 to a Person other than the registered holder of such certificate or establish to the satisfaction of the Parent that such Taxes have been paid or are not applicable.
(c) All cash paid upon the surrender of certificates representing Company Common Stock 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 Common Stock theretofore represented by such certificates, from subject, however, to the Surviving Corporation's obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time that may have been declared or made by the Company on such shares of Company Common Stock and that remain unpaid at the Effective Time. If, after the Effective Time, to represent only the right to receive shares of Parent certificates representing Company Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant are presented to Section 1.5(c)) as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificateor the Paying Agent for any reason, they shall be canceled and exchanged as provided in this Article I, except as otherwise provided by Law.
(cd) No dividends None of the Parent, Merger Sub, the Company, the Surviving Corporation or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time Paying Agent shall be paid or otherwise liable to any Person in respect of any cash delivered to the holder of a public official pursuant to any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar lawsLaw. No Person previously entitled to any amounts payable pursuant to this Article I shall have any claim to such amount to the extent such amount has escheated or become the property of, and paid to, any Governmental Entity. At any time following six months after the Effective Time, the Surviving Corporation shall be entitled to receive all such dividends require that the Paying Agent deliver to it any funds (including any earnings received with respect thereto) that had been made available to the Paying Agent and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed have not been disbursed to holders of certificates representing Company Common Stock Certificates or holders of Eligible Options, and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective thereafter such holders shall be delivered entitled to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent forthe Surviving Corporation (subject to abandoned property, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends escheat or distributions other similar Laws) as general creditors thereof with respect to shares the Merger Consideration payable upon due surrender of Parent Common Stocktheir certificates.
(e) Neither Parent nor The Paying Agent shall be authorized to pay the Merger Consideration attributable to any certificate(s) representing Company Common Stock that have been lost, stolen or destroyed upon receipt of evidence of ownership of the Company Common Stock represented thereby and of appropriate indemnification and/or bond in each case reasonably satisfactory to the Surviving Corporation Corporation.
(f) The Parent, the Surviving Corporation, and the Paying Agent shall be liable entitled to deduct and withhold from amounts otherwise payable pursuant to this Agreement to any holder or former holder of certificates previously representing Company Common Stock or to any other Person holder of Eligible Options such amounts as the Parent, the Surviving Corporation, or the Paying Agent, respectively, reasonably determines is required to be deducted and withheld with respect to any shares the making of Parent Common Stock such payment under the Internal Revenue Code of 1986, as amended (or dividends or distributions with respect theretothe "Code"), or any CVRs provision of state, local or foreign Tax Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for any cash amountsall purposes of this Agreement as having been paid to the holder of such certificates or of such Eligible Options in respect of which such deduction and withholding was made by the Parent, delivered to any public official pursuant to any applicable abandoned property lawthe Surviving Corporation, escheat law or other Legal Requirementthe Paying Agent.
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Exchange of Certificates. (a) Prior At such times as shall be necessary to make the Closingpayments pursuant to Section 2.5 to holders of Shares, Parent shall select make available to the Surviving Corporation, and the Surviving Corporation shall deposit with a reputable bank or trust company reasonably satisfactory to designated by Parent before the Company to act as exchange agent in the Merger (the “Exchange Agent”) Closing Date and shall enter into an agreement reasonably acceptable to the Company with (the Exchange Agent relating "Payment Agent") an amount in cash equal to the services aggregate Per Share Price to which holders of Shares shall be entitled upon consummation of the Merger, to be performed by held for the Exchange Agent. At the Closing, Parent shall issue benefit of and cause distributed to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares such holders in accordance with Section 1.5(c)this Section. The shares of Parent Common Stock and cash amounts so deposited with the Exchange AgentPayment Agent shall agree to hold such funds (such funds, together with any dividends or distributions received earnings thereon, being referred to herein as the "Payment Fund") for delivery as contemplated by this Section and upon such additional terms as may be agreed upon by the Exchange Payment Agent, the Company and Parent. If for any reason (including losses) the Payment Fund is inadequate to pay the cash amounts to which holders of Shares shall be entitled, Parent and the Surviving Corporation shall in any event remain liable, and Parent shall make available to the Surviving Corporation additional funds for the payment thereof. The payment Agent with shall invest portions of the Payment Fund as Parent directs. All interest and other income earned in respect of the Payment Fund shall inure to such shares of Parent Common Stockthe benefit of, are referred to collectively and shall be paid to, the Surviving Corporation. The Payment Fund shall not be used for any purpose except as the “Exchange Fundexpressly provided in this Agreement.”
(b) Promptly As soon as practicable after the Effective Time, Parent and the Surviving Corporation shall cause the Exchange Payment Agent to mail to each record holder of one or more certificates (the Persons who were record holders of Company Stock Certificates or Book Entry Shares "Certificates") that immediately prior to the Effective Time: Time represented outstanding Shares and associated Rights that have been converted pursuant to Section 2.5(a) into the right to receive the Per Share Price (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably (which shall specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock the Certificates or Book Entry Shares shall pass, only upon delivery receipt of the Certificates by the Payment Agent and shall be in such Company Stock Certificates or Book Entry Shares to form and have such other provisions as the Exchange Agent); Surviving Corporation may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Stock the Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Per Share Price. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Payment Agent for exchangecancellation, together with a duly executed such letter of transmittal duly executed and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) completed in accordance with its terms, the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receivereceive in exchange therefor a check representing the Per Share Price for each Share represented thereby, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall forthwith be canceled. Until surrendered as contemplated In no event shall the holder of any Certificate be entitled to receive interest on any funds to be received by this Section 1.7(b)reason of the Merger, each Company Stock including any interest earned by the Payment Fund. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, the Per Share Price may be paid to a transferee if the Certificate representing such Shares is presented to the Payment Agent accompanied by all documents required to evidence and Book Entry Share effect such transfer and by evidence that any applicable stock transfer taxes have
(c) All cash paid upon the surrender for exchange of Certificates in accordance with the terms hereof shall be deemed, from deemed to have been paid in full satisfaction of all rights pertaining to the Shares and the Rights represented thereby. From and after the Effective Time, to represent only the right to receive shares stock transfer books of Parent Common Stock the Company shall be closed and CVRs (and cash in lieu there shall be no further registration of any fractional share transfers on the stock transfer books of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of Parent Common Stock in book entry form and CVRs, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect of the Shares that were outstanding immediately prior to such Company Stock Certificate.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date the Effective Time. If, after the Effective Time Time, Certificates are presented to the Surviving Corporation for any reason, they shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive canceled and exchanged as provided in this Section, subject in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect case of applicable abandoned property, escheat or similar lawsDissenting Shares, to receive all such dividends applicable law and distributions, without interest)the provisions of this Agreement.
(d) Any portion of the Exchange Payment Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of unclaimed by the date that is one year Company's shareholders six months after the date on which the Merger becomes effective Effective Time shall be delivered to Parent the Surviving Corporation upon demand, and any holders of Company Stock Certificates or Book Entry Shares the Company's shareholders who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance complied with this Section 1.7 shall thereafter look only to Parent forthe Surviving Corporation (subject to abandoned property, escheat and be entitled to receive from Parent, satisfaction other similar laws) as general creditors for payment of their claims claim for Parent Common Stock, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and any dividends or distributions with respect to shares of Parent Common Stock.
(e) the Per Share Price. Neither Parent nor the Surviving Corporation shall be liable to any holder of Shares for cash representing the Per Share Price delivered to a public official in accordance with any applicable abandoned property, escheat or former holder similar law.
(e) The Surviving Corporation shall be entitled to deduct and withhold from the Per Share Price or any payment made in respect of Company Common Stock or Dissenting Shares such amounts as the Surviving Corporation is required to any other Person deduct and withhold with respect to any shares the making of Parent Common Stock such payment under the Internal Revenue Code of 1986, as amended (or dividends or distributions with respect theretothe "Code"), or any CVRs provision of state, local or foreign tax law. Such withheld amounts shall be treated for any cash amounts, delivered all purposes of this Agreement as having been paid to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirementthe holder of the Shares in respect of which such deduction and withholding was made.
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Exchange of Certificates. (aA) Prior On or prior to the ClosingClosing Date, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange the paying agent in connection with the Merger (the “Exchange "Paying Agent”) and shall enter into an agreement reasonably acceptable "). Prior to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At or at the Closing, Parent shall issue and cause to be deposited deposit with the Exchange Paying Agent: (i) non-certificated shares , in trust for the benefit of Parent Common the Persons who were record holders of Company Stock represented by book entry issuable Certificates immediately prior to the Effective Time, cash in an amount equal to the aggregate consideration payable pursuant to Section 1.5; and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c1.5(a)(iii). The shares of Parent Common Stock and cash amounts amount so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Paying Agent with respect to such shares of Parent Common Stock, are is referred to collectively as the “Exchange "Payment Fund.”"
(bB) Promptly after As soon as practicable following the Effective Time, Parent shall cause the Exchange Paying Agent to will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares certificates to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Merger Consideration. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder Merger Consideration multiplied by the number of whole shares of Parent Company Common Stock and CVRs that such holder has represented by the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Company Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))Certificate; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. If any cash is to be paid to a Person other than the record holder of a Company Stock Certificate, it shall be a condition of such payment that the Company Stock 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 payment shall: (1) pay to the Paying Agent any transfer or other Taxes required by reason of such payment to a Person other than the record holder of the Company Stock Certificate surrendered; or (2) establish to the satisfaction of Parent that such Tax has been paid or is not required to be paid. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share 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 shares of Parent Company Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common represented by such Company Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5Certificate, without interest thereon. 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 delivery of any non-certificated shares of Parent Common Stock in book entry form and CVRsMerger Consideration, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond, in such sum as Parent may reasonably direct, as indemnity against any claim that may be made against the Exchange Paying Agent, Parent or Parent, the Surviving Corporation or any affiliated party 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 Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(dC) Any portion of the Exchange Payment Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year 180 days after the date on which the Merger becomes effective Closing Date shall be delivered by the Paying Agent to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common StockMerger Consideration, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c), and without any dividends or distributions with respect to shares of Parent Common Stockinterest thereon.
(eD) Each of the Paying Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any holder or former holder of shares of Company Common Stock such amounts as Parent determines in good faith may be required to be deducted or withheld therefrom under the Code, or under any provision of state, local or non-U.S. Tax 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 to the Person to whom such amounts would otherwise have been paid.
(E) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of shares 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), any CVRs or for any cash amounts, Merger Consideration delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.
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Exchange of Certificates. (a) Prior On or prior to the ClosingClosing Date, Parent shall select select, with the prior approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed) a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable ). At or prior to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the ClosingEffective Time, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash in immediately available funds sufficient to make payments of the aggregate cash consideration payable pursuant to Section 1.5 (the “Payment Fund”). The Payment Fund shall be invested by the Payment Agent as directed by Parent; provided that such investments shall be in lieu obligations of fractional shares or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of investment. Any interest and other income resulting from such investment shall become a part of the Payment Fund, and any amounts in excess of the aggregate amounts payable under Section 1.5 shall be returned to the Surviving Corporation in accordance with Section 1.5(c1.7(c). The shares of Parent Common Stock and cash amounts so deposited with To the Exchange Agent, together with extent that there are any dividends or distributions received by the Exchange Agent losses with respect to any such shares of investments, or the Payment Fund diminishes for any reason below the level required for the Paying Agent to make prompt cash payment under Section 1.5, Parent Common Stockshall, are referred or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Payment Fund so as to collectively as ensure that the “Exchange FundPayment Fund is at all times maintained at a level sufficient for the Paying Agent to make such payments under Section 1.5.”
(b) Promptly after the Effective Time (and in any event within five business days after the Effective Time), Parent shall cause the Exchange Paying Agent to will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares uncertificated shares of Company Common Stock represented by book entry (“Uncertificated Shares”) shall pass, only upon delivery of such Company Stock Certificates or Book Entry transfer of the Uncertificated Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry transfer of Uncertificated Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)Merger Consideration. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent, or compliance with the reasonable procedures established by the Paying Agent for delivery of Uncertificated Shares: (A) the holder of such Company Stock Certificate or Book Entry Uncertificated Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs cash consideration that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash 1.5, in lieu full satisfaction of any fractional share all rights pertaining to the shares of Parent Company Common Stock pursuant to Section 1.5(c) and any dividends formerly represented by such Company Stock Certificate or other distributions pursuant to Section 1.7(c))Uncertificated Shares; and (B) the Company Stock Certificate or Book Entry Uncertificated Shares so surrendered shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares or Uncertificated Shares is registered if: (1) any such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer; and (2) such holder shall have paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Merger Consideration to a Person other than such holder (or shall have established to the reasonable satisfaction of Parent that such bonds and Taxes have been paid or are not applicable). Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry each Uncertificated Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) Merger Consideration as contemplated by Section 1.5. 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 delivery of any non-certificated Merger Consideration with respect to the shares of Parent Company Common Stock in book entry form and CVRspreviously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond (in such sum as Parent may direct) as indemnity against any claim that may be made against the Exchange Paying Agent, Parent Parent, Merger Sub 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 Effective Time interest shall be paid or otherwise delivered to the holder of will accrue on any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed cash payable to holders of Company Stock Certificates and Book Entry or in respect of Uncertificated Shares pursuant to the provisions of this Section 1.7.
(c) Any portion of the Payment Fund that remains undistributed to former holders of shares of Company Common Stock (including holders of Company Stock Certificates) as of the date that is one year 180 days after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any former holders of shares of Company Common Stock (including holders of Company Stock Certificates or Book Entry Shares Certificates) who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common Stock, CVRs, cash in lieu Merger Consideration.
(d) Each of fractional shares the Paying Agent 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 Parent Company Common Stock pursuant or Company Equity Award such amounts as may be required to Section 1.5(c)be deducted or withheld from such consideration under the Code or any provision of state, and local or foreign tax law or under any dividends other applicable Legal Requirement. To the extent such amounts are so deducted or distributions with respect withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to shares of Parent Common Stockthe Person to whom such amounts would otherwise have been paid.
(e) Neither Parent nor If any Company Stock Certificate has not been surrendered by the earlier of: (i) the fifth anniversary of the date on which the Merger becomes effective; or (ii) the date immediately prior to the date on which the cash amount that such Company Stock Certificate represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such cash amount shall, to the extent permitted by applicable Legal Requirements, become the property of the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
(f) None of Parent, Merger Sub, the Surviving Corporation and the Paying Agent 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), any CVRs or for any cash amounts, Merger Consideration delivered to any public official pursuant to any applicable abandoned property law, escheat law or other similar Legal Requirement.
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Exchange of Certificates. (a) Prior to the ClosingClosing Date, Parent shall select and enter into an agreement with a reputable bank or trust company reasonably satisfactory to the Company to that will act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable to ). Promptly after the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the ClosingEffective Time, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash sufficient to make payments in lieu of fractional shares in accordance with the cash consideration payable pursuant to Section 1.5(c1.5 (the “Payment Fund”). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with Payment Fund shall not be used for any dividends or distributions received other purpose. The Payment Fund shall be invested by the Exchange Payment Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Funddirected by Parent.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Paying Agent to will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and that risk of loss of, and title to to, Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)Merger Consideration. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs cash consideration that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash 1.5, in lieu full satisfaction of any fractional share all rights pertaining to the shares of Parent Company Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))formerly represented by such Company Stock Certificate; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares is registered if (1) any such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and (2) such holder shall have paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Merger Consideration to a Person other than such holder (or shall have established to the reasonable satisfaction of Parent that such bonds and Taxes have been paid or are not applicable). Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) Merger Consideration as contemplated by Section 1.5. 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 delivery of any non-certificated Merger Consideration with respect to the shares of Parent Company Common Stock in book entry form and CVRspreviously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an a reasonably appropriate affidavit and to deliver a bond (in such reasonable and customary indemnification obligation sum as Parent may direct) as indemnity against any claim that may be made against the Exchange Paying Agent, Parent Parent, Merger Sub or the Surviving Corporation with respect to such Company Stock Certificate. No interest shall be paid or will accrue on any cash payable to holders of Company Stock Certificates pursuant to the provisions of this Section 1.7.
(c) 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 or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Payment Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common StockMerger Consideration.
(d) Each of the Paying Agent, CVRsParent, cash in lieu Merger Sub and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any holder or former holder of fractional shares of Parent Company Common Stock pursuant or any Company Equity Award such amounts as may be required to Section 1.5(c)be deducted or withheld from such consideration under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and any dividends or distributions with respect are remitted to shares of Parent Common Stockthe applicable Taxing Authorities on a timely basis, 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.
(e) Neither Parent nor If any Company Stock Certificate has not been surrendered by the earlier of: (i) the fifth anniversary of the date on which the Merger becomes effective; or (ii) the date immediately prior to the date on which the cash amount that such Company Stock Certificate represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such cash amount shall, to the extent permitted by applicable Legal Requirements, become the property of the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
(f) None of Parent, Merger Sub, the Surviving Corporation and the Paying Agent 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), any CVRs or for any cash amounts, Merger Consideration delivered to any public official pursuant to any applicable abandoned property law, escheat law or other similar Legal Requirement.
(g) The Surviving Corporation or Parent shall bear and pay all charges and expenses of the Paying Agent incurred in connection with the payment of Merger Consideration.
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Exchange of Certificates. (a) Prior On or prior to the ClosingClosing Date, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable ). Subject to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the ClosingSection 1.8, Parent shall issue and use reasonable efforts to cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent promptly after the Effective Time on the Closing Date, but in no event later than one Business Day following the Closing Date, cash sufficient to make payments of the Merger Consideration payable pursuant to Section 1.5, other than payments of the Merger Consideration that may become payable pursuant to Section 1.5(b) (the “Payment Fund”). The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in lieu short-term obligations of fractional shares the United States with maturities of no more than 30 days or guaranteed by the United States and backed by the full faith and credit of the United States. No investment of the Payment Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Section 1, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent in the amount of such losses to the extent the funds in the Payment Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Payment Fund. Following the Effective Time, Parent shall retain cash sufficient to make, or cause to be made, payments of the Merger Consideration payable to the former holders of Company Restricted Stock pursuant to Section 1.5(b) in accordance with Section 1.5(c1.5(b). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Paying Agent to will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Uncertificated Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry transfer of Uncertificated Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Uncertificated Shares shall pass, only upon proper delivery of such Company Stock Certificates or Book Entry transfer of the Uncertificated Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry transfer of Uncertificated Shares in exchange for non-certificated shares Merger Consideration. The form and substance of such letter of Table of Contents transmittal and instructions shall be as reasonably agreed to by Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant the Company prior to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Effective Time. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchangeexchange (or compliance with the reasonable procedures established by the Paying Agent for transfer of Uncertificated Shares), together with the delivery of a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Uncertificated Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs cash consideration that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash 1.5, in lieu full satisfaction of any fractional share all rights pertaining to the shares of Parent Company Common Stock pursuant to Section 1.5(c) and any dividends formerly represented by such Company Stock Certificate or other distributions pursuant to Section 1.7(c))Uncertificated Shares; and (B) the Company Stock Certificate or Book Entry Uncertificated Shares so surrendered or transferred shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares or Uncertificated Shares is registered if: (1) any such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer; and (2) such holder shall have paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Merger Consideration to a Person other than such holder (or shall have established to the reasonable satisfaction of Parent that such bonds and Taxes have been paid or are not applicable). Until surrendered or transferred as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry each Uncertificated Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) Merger Consideration as contemplated by Section 1.5. 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 payment of any non-certificated Merger Consideration with respect to the shares of Parent Company Common Stock in book entry form and CVRspreviously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond (in such sum as Parent may direct) as indemnity against any claim that may be made against the Exchange Paying Agent, Parent Parent, Merger Sub 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 Effective Time interest shall be paid or otherwise delivered to the holder of will accrue on any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed Consideration payable to holders of Company Stock Certificates and Book Entry Shares or in respect of Uncertificated Shares.
(c) Any portion of the Payment Fund that remains undistributed to former holders of shares of Company Common Stock as of the date that is one year 180 days after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any former holders of shares of Company Common Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates Certificates, or Book Entry Shares complied with the procedures established by the Paying Agent for transfer of Uncertificated Shares, in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common StockMerger Consideration.
(d) Each of the Paying Agent, CVRsParent, cash in lieu Merger Sub 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 fractional shares of Parent Company Common Stock pursuant or any Company Equity Award such amounts as may be required to Section 1.5(c)be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and any dividends or distributions with respect paid over to shares of Parent Common Stockthe proper Governmental Body, 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.
(e) Neither Parent nor If any Company Stock Certificate has not been surrendered, or any Uncertificated Share has not been transferred, by the earlier of: (i) the fifth anniversary of the date on which the Merger becomes effective; and (ii) the date immediately prior to the date on which the cash amount that such Company Stock Certificate or Uncertificated Share represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such cash amount shall, to the extent permitted by applicable Legal Requirements, become the property of the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
(f) None of Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall be liable to any holder or former holder of Company Common Stock or to any other Person with respect to any shares Merger Table of Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, Contents Consideration delivered to any public official pursuant to any applicable abandoned property law, escheat law or other similar Legal Requirement.
Appears in 1 contract
Samples: Merger Agreement (Aquantia Corp)
Exchange of Certificates. (a) Prior to the Closing, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Paying Agent relating to the services to be performed by the Exchange Paying Agent. At the Closing, Parent shall issue and deposit, or shall cause to be deposited deposited, on behalf of Purchaser, with the Exchange Paying Agent: (i) non-certificated shares , substantially concurrent with the Effective Time, all of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) cash sufficient the funds necessary to make payments in lieu of fractional shares the Cash Consideration in accordance with Section 1.5(c1.8(a)(iii). The shares of Parent Common Stock and cash amounts amount so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Paying Agent with respect to such shares of Parent Common Stock, are is referred to collectively as the “Exchange Payment Fund.”” The Payment Fund may be invested by the Paying Agent as directed by Parent or the Surviving Corporation.
(b) Promptly after the Effective Time, Parent shall cause the Exchange Paying Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Offer Price. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Paying Agent shall (and Parent shall cause the Exchange Paying Agent to) in exchange therefor transfer from the Exchange Payment Fund to such holder the number of whole shares of Parent Common Stock and CVRs Offer Price that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))1.8; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b1.10(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) the Offer Price as contemplated by Section 1.51.8. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance payment of any non-certificated shares of Parent Common Stock in book entry form and CVRsOffer Price, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Paying 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 record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Payment Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 1.10 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stockpayment of the Offer Price (subject to abandoned property, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(cescheat or other similar laws), and any dividends or distributions with respect to shares of Parent Common Stockwithout interest.
(ed) 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), any CVRs the Offer Price or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.
Appears in 1 contract
Samples: Merger Agreement (Applied Genetic Technologies Corp)
Exchange of Certificates. (a) Prior to the Closing, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Paying Agent relating to the services to be performed by the Exchange Paying Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash sufficient to make payments in lieu of fractional shares the Cash Consideration in accordance with Section 1.5(c1.8(a)(iii). The shares of Parent Common Stock and cash amounts amount so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Paying Agent with respect to such shares of Parent Common Stock, are is referred to collectively as the “Exchange Payment Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Paying Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Offer Price. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Paying Agent shall (and Parent shall cause the Exchange Paying Agent to) in exchange therefor transfer from the Exchange Payment Fund to such holder the number of whole shares of Parent Common Stock and CVRs Offer Price that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))1.8; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b1.10(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) the Offer Price as contemplated by Section 1.51.8. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance payment of any non-certificated shares of Parent Common Stock in book entry form and CVRsOffer Price, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against the Exchange Paying 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 record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Payment Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 1.10 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common Stockpayment of the Offer Price (subject to abandoned property, CVRs, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(cescheat or other similar laws), and any dividends or distributions with respect to shares of Parent Common Stockwithout interest.
(ed) 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), any CVRs the Offer Price or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Prior On or prior to the ClosingClosing Date, Parent shall select a reputable bank or trust company reasonably satisfactory acceptable to the Company to act as exchange agent in the Merger (the “Exchange Agent”). Promptly, but in no event later than five (5) and business days, after the Effective Time, Parent shall enter into an agreement reasonably acceptable to the Company deposit with the Exchange Agent relating in trust for the benefit of the holders of Company Stock Certificates immediately available funds in an amount not less than the amount necessary to make the services to be performed by payments for the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent the Company Common Stock represented contemplated by book entry issuable pursuant to Section 1.5; and 1.5.(a)(iii) (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agentsuch amount, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”)
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent shall cause the Exchange Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); , and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the aggregate Price Per Share relating thereto. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: , (A1) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant an amount in cash, without interest, equal to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); aggregate Price Per Share relating thereto, and (B2) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b)1.7, each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) the aggregate Price Per Share relating thereto as contemplated by Section 1.5Section1.5(a)(iii). 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 payment of any non-certificated shares of Parent Common Stock in book entry form and CVRsthe aggregate Price Per Share relating thereto, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to the alleged loss, theft or destruction of 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 Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, 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 and Book Entry Shares as of the date that is one year 180 days after the date on which the Merger becomes effective Effective Time occurs shall be delivered to Parent the Surviving Corporation upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, the Surviving Corporation for satisfaction of their claims for the aggregate Price Per Share relating thereto.
(d) Each of the Exchange Agent, Parent Common Stock, CVRs, cash in lieu 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 fractional shares of Parent Company Common Stock pursuant such amounts as may be required to Section 1.5(c)be deducted or withheld therefrom under the Code or any provision of state, and local or foreign tax law or under any dividends other applicable Legal Requirement. To the extent such amounts are so deducted or distributions with respect withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to shares of Parent Common Stockthe Person to whom such amounts would otherwise have been paid.
(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 portion of Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, the Exchange Fund properly delivered to any public official pursuant to as required by any applicable abandoned property law, escheat law or other similar Legal Requirement.
(f) The Exchange Agent shall invest any cash included in the Exchange Fund in United States government securities with a maturity period of thirty (30) days or less or in certificates of deposit issued by any United States bank with at least $5 billion in assets, as directed by Parent, on a daily basis. Any interest and other income resulting from such investments shall be paid to the Surviving Corporation upon termination of the Exchange Fund. In the event the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made by the Exchange Agent thereunder, then Merger Sub or the Surviving Corporation 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 payment obligations.
Appears in 1 contract
Samples: Merger Agreement (Jni Corp)
Exchange of Certificates. (a) Prior to the ClosingClosing Date, Parent shall select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and shall enter into an agreement reasonably acceptable ). Promptly after the Effective Time, subject to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At the ClosingSection 1.8, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash sufficient to make payments of the Merger Consideration payable pursuant to Section 1.5 (the “Payment Fund”). The Payment Fund shall be invested by the Paying Agent as directed by Parent. Nothing contained in lieu this Section 1.7, and no investment losses resulting from the investment of fractional shares the Payment Fund, shall diminish the rights of the stockholders of the Company to receive the Merger Consideration in accordance with Section 1.5(c)the terms of this Agreement. The shares To the extent there are losses resulting from the investment of Parent Common Stock and cash amounts so deposited the Payment Fund as directed by Parent, or the amount in the Payment Fund for any reason (including Dissenting Shares losing their status as such) is less than the amount required to promptly pay the Merger Consideration in accordance with the Exchange Agentterms of this Agreement, together Parent shall replace, restore or add to the cash in the Payment Fund to ensure the prompt payment of the Merger Consideration to the stockholders of the Company in accordance with any dividends or distributions received by the Exchange Agent with respect to such shares terms of Parent Common Stock, are referred to collectively as the “Exchange Fundthis Agreement.”
(b) Promptly after the Effective TimeTime (and in any event within five Business Days), Parent shall cause the Exchange Paying Agent to will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Uncertificated Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form reasonably acceptable to the Company and containing such customary provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry transfer of Uncertificated Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Uncertificated Shares shall pass, only upon proper delivery of such Company Stock Certificates or Book Entry transfer of the Uncertificated Shares to the Exchange Paying Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry transfer of Uncertificated Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)Merger Consideration. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Paying Agent for exchangeexchange or receipt of an “agent’s message” by the Paying Agent in connection with the transfer of an Uncertificated Share, together with the delivery of a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Paying Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Uncertificated Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs cash consideration that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash 1.5, in lieu full satisfaction of any fractional share all rights pertaining to the shares of Parent Company Common Stock pursuant to Section 1.5(c) and any dividends formerly represented by such Company Stock Certificate or other distributions pursuant to Section 1.7(c))Uncertificated Shares; and (B) the Company Stock Certificate or Book Entry Uncertificated Shares so surrendered or transferred shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares or Uncertificated Shares is registered if: (1) any such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer; and (2) such holder shall have paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Merger Consideration to a Person other than such holder (or shall have established to the reasonable satisfaction of Parent that such bonds and Taxes have been paid or are not applicable). Until surrendered or transferred as contemplated by this Section 1.7(b), each Company Stock Certificate and Book Entry each Uncertificated Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) Merger Consideration as contemplated by Section 1.5. 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 payment of any non-certificated Merger Consideration with respect to the shares of Parent Company Common Stock in book entry form and CVRspreviously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond (in such sum as Parent may direct) as indemnity against any claim that may be made against the Exchange Paying Agent, Parent Parent, Merger Sub 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 Effective Time interest shall be paid or otherwise delivered to the holder of will accrue on any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed Consideration payable to holders of Company Stock Certificates and Book Entry Shares or Uncertificated Shares.
(c) Any portion of the Payment Fund that remains undistributed to former holders of shares of Company Common Stock as of the date that is one year 360 days after the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any former holders of shares of Company Common Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry transferred their Uncertificated Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common StockMerger Consideration.
(d) Each of the Paying Agent, CVRsParent, cash in lieu Merger Sub 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 fractional shares of Parent Company Common Stock pursuant or any Company Equity Award such amounts as may be required to Section 1.5(c)be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and any dividends or distributions with respect paid over to shares of Parent Common Stockthe appropriate Tax authority, 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.
(e) Neither Parent nor If any Company Stock Certificate has not been surrendered, or any Uncertificated Share has not been transferred, by the earlier of: (i) the fifth anniversary of the date on which the Merger becomes effective; and (ii) the date immediately prior to the date on which the cash amount that such Company Stock Certificate or Uncertificated Share represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such cash amount shall, to the extent permitted by applicable Legal Requirements, become the property of the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
(f) None of Parent, Merger Sub, the Surviving Corporation or the Paying Agent 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), any CVRs or for any cash amounts, Merger Consideration delivered to any public official pursuant to any applicable abandoned property law, escheat law or other similar Legal Requirement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (ADESTO TECHNOLOGIES Corp)
Exchange of Certificates. (a) Prior On or prior to the ClosingClosing Date, Parent shall select a Computershare Trust Company, N.A. or another reputable bank or trust company reasonably satisfactory acceptable to the Company to act as exchange paying agent in the Merger (the “Exchange Paying Agent”) and and, in connection therewith, shall enter into an agreement with the Paying Agent in a form reasonably acceptable to the Company with the Exchange Agent relating Company. Prior to the services to be performed by the Exchange Agent. At the ClosingEffective Time, Parent shall issue and deposit, or cause to be deposited deposited, with the Exchange Agent: (i) non-certificated shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.5; and (ii) Paying Agent cash sufficient to make all payments in lieu of fractional shares in accordance with pursuant to Section 1.5(c1.5(a)(iii). The shares Surviving Corporation shall be responsible for all expenses of Parent Common Stock and the Paying Agent. The cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Paying Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly As promptly as practicable (but in no event later than three Business Days) after the Effective Time, the Surviving Corporation or Parent shall cause the Exchange Paying Agent to mail to each holder of record of a Share, in each case, which Shares were converted into the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior right to receive the Per Share Merger Consideration at the Effective Time: Time pursuant to this Agreement:
(i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably form, which shall specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to the Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such the Company Stock Certificates or Book Entry Shares to the Exchange Paying Agent), or in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal; and and
(ii) instructions for use in effecting the surrender of the Company Stock Certificates or Book Book-Entry Shares in exchange for nonpayment of the Per Share Merger Consideration.
(c) Upon the surrender of Company Stock Certificates or Book-certificated shares of Parent Common Stock in book entry form, CVRsEntry Shares for cancellation to the Paying Agent, and cash upon delivery of a letter of transmittal, duly executed and in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) proper form in accordance with the instructions thereto, and any dividends or other distributions pursuant to Section 1.7(c). Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent Paying Agent, with respect to such Company Stock Certificates or Parent: (A) Book-Entry Shares, the holder of such Company Stock Certificate Certificates or Book Book-Entry Shares shall be entitled to receivereceive the Per Share Merger Table of Contents Consideration for each Share formerly represented by such Company Stock Certificates or Book-Entry Shares. Any Company Stock Certificates so surrendered shall forthwith be cancelled. If payment of the Per Share Merger Consideration is to be made to a Person other than the Person in whose name any surrendered Company Stock Certificate or Book-Entry Share is registered, and the Exchange Agent it shall (and Parent shall cause the Exchange Agent to) in exchange therefor transfer from the Exchange Fund to such holder the number be a condition precedent of whole shares of Parent Common Stock and CVRs payment that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); and (B) the Company Stock Certificate or Book Book-Entry Shares Share so surrendered shall be canceledproperly endorsed or shall be otherwise in proper form for transfer and shall be accompanied by all documents reasonably required to evidence and effect such transfer, and the Person requesting such payment shall have paid any transfer and other similar Taxes required by reason of the payment of the Per Share Merger Consideration to a Person other than the registered holder of the Company Stock Certificate or Book-Entry Share so surrendered and shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not required to be paid. Until surrendered as contemplated hereby, each Company Stock Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Per Share Merger Consideration as contemplated by this Agreement.
(d) Until surrendered in accordance with Section 1.7(b1.8(c), each Company Stock Certificate and Book each Book-Entry Share in respect of Shares converted into the right to receive Per Share Merger Consideration pursuant to Section 1.5(a)(iii) shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock the Per Share Merger Consideration. The Per Share Merger Consideration paid and CVRs (and cash in lieu issued upon the surrender of any fractional share Company Stock Certificate or Book-Entry Share in accordance with the terms of Parent Common this Section 1.8 shall be deemed to have been paid and issued in full satisfaction of all rights pertaining to such Company Stock pursuant Certificate or Book-Entry Share and, in the case of a Company Stock Certificate, the Shares formerly represented by it.
(e) Notwithstanding anything to the contrary contained in this Section 1.5(c)) as contemplated by Section 1.5. If 1.8, if any Company Stock Certificate shall have been lost, stolen or destroyed, Parent mayupon the making of an affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if reasonably required by the Surviving Corporation (including if requested by the Paying Agent), the posting by such Person of a bond, in its such reasonable discretion and amount as a condition Parent may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate, the Paying Agent (or, if subsequent to the issuance termination of any non-certificated shares of Parent Common Stock the Exchange Fund and subject to Section 1.8(h), Parent) shall deliver, in book entry form and CVRs, require the owner of exchange for such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation against any claim that may be made against Certificate, the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock CertificatePer Share Merger Consideration as set forth in Section 1.5.
(c) 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 or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
(df) Any portion of the Exchange Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after anniversary of the date on which the Merger becomes effective Closing Date shall be delivered to Parent upon demand, and thereafter any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 1.8 shall thereafter look only to Parent for, and be entitled to receive from Parent, for satisfaction of their claims for Parent Common Stockthe Per Share Merger Consideration. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, CVRsto the extent permitted by applicable Law, cash in lieu of fractional shares the property of Parent Common Stock pursuant to Section 1.5(c)or its designee, free and clear of all claims or interest of any dividends or distributions with respect to shares of Parent Common Stockperson previously entitled thereto.
(eg) Neither Parent nor Each of the Paying Agent, Parent, Merger Sub, the Company and the Surviving Corporation Corporation, as applicable, shall be liable entitled to deduct and withhold from any holder amounts payable or former holder otherwise deliverable pursuant to this Agreement such amounts as may be required to be deducted or withheld under the Code or any provision of Company Common Stock state, local or to foreign Tax Law or under any other applicable Law. To the extent such amounts are so deducted or withheld and paid over to the appropriate Governmental Authority, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirementwhom such amounts would otherwise have been paid.
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Samples: Merger Agreement (Shutterfly Inc)
Exchange of Certificates. (a) Prior to the ClosingClosing Date, Parent shall select a reputable Registrar and Transfer Company, Parent’s transfer agent, or another bank or trust company reasonably satisfactory to the Company Company, to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Company with the Exchange Agent relating to the services to be performed by the Exchange Agent. At or promptly after the ClosingEffective Time, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated certificates representing the shares of Parent Common Stock represented by book entry issuable pursuant to Section 1.51.5; and (ii) cash sufficient to make payments in lieu of fractional shares Alternative Cash Consideration in accordance with Section 1.5(c1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of certificates representing Parent Common Stock in book entry formor, CVRsif applicable, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the Alternative Cash Consideration. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder a certificate representing the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c))1.5 or, if applicable the Alternative Cash Consideration; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b1.8(b), each Company Stock Certificate and or Book Entry Share Shares shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) as contemplated by Section 1.5the Per Share Merger Consideration or, if applicable, the Alternative Cash Consideration. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any non-certificated shares of certificate representing Parent Common Stock in book entry form and CVRsStock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable bond (in such sum as Parent and customary indemnification obligation the Exchange Agent reasonably agree to direct) as indemnity against any claim that may be 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 record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, 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 and or Book Entry Shares as of the date that is one year after the date on which the Merger becomes effective shall be delivered to Parent upon demandwithin ten days of Parent’s written request therefore, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 1.8 shall thereafter look only to Parent for, and be entitled to receive from Parent, satisfaction of their claims for Parent Common StockStock or, CVRsif applicable, cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c)Alternative Cash Consideration, and any dividends or distributions with respect to such shares of Parent Common Stock.
(d) 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 required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax Legal Requirement or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and timely paid over to the appropriate Governmental Body, (i) 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, and (ii) Parent, the Exchange Agent or the Surviving Corporation, as the case may be, shall promptly deliver the amounts so deducted or withheld to the applicable Taxing or other Governmental Body.
(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 Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property lawLegal Requirement, escheat law Legal Requirement or other similar Legal Requirement.
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Exchange of Certificates. (a) Prior On or prior to the ClosingClosing Date, Parent shall select a reputable bank or trust company reasonably satisfactory acceptable to the Company to act as exchange agent in the Merger (the “Exchange Agent”). Promptly, but in no event later than five (5) and business days, after the Effective Time, Parent shall enter into an agreement reasonably acceptable to the Company deposit with the Exchange Agent relating in trust for the benefit of the holders of Company Stock Certificates immediately available funds in an amount not less than the amount necessary to make the services to be performed by payments for the Exchange Agent. At the Closing, Parent shall issue and cause to be deposited with the Exchange Agent: (i) non-certificated shares of Parent the Company Common Stock represented contemplated by book entry issuable pursuant to Section 1.5; and 1.5.(a)(iii) (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agentsuch amount, together with any dividends or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively as the “Exchange Fund.”)
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent shall cause the Exchange Agent to mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); , and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for non-certificated shares of Parent Common Stock in book entry form, CVRs, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)the aggregate Price Per Share relating thereto. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: , (A1) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to receive, and the Exchange Agent shall (and Parent shall cause the Exchange Agent to) receive in exchange therefor transfer from the Exchange Fund to such holder the number of whole shares of Parent Common Stock and CVRs that such holder has the right to receive pursuant an amount in cash, without interest, equal to the provisions of Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c) and any dividends or other distributions pursuant to Section 1.7(c)); aggregate Price Per Share relating thereto, and (B2) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b)1.7, each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock and CVRs (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)) the aggregate Price Per Share relating thereto as contemplated by Section 1.51.5(a)(iii). 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 payment of any non-certificated shares of Parent Common Stock in book entry form and CVRsthe aggregate Price Per Share relating thereto, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a reasonable and customary indemnification obligation bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to the alleged loss, theft or destruction of 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 Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate or Book Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or Book Entry Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, 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 and Book Entry Shares as of the date that is one year 180 days after the date on which the Merger becomes effective Effective Time occurs shall be delivered to Parent the Surviving Corporation upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 1.7 shall thereafter look only to Parent for, and be entitled to receive from Parent, the Surviving Corporation for satisfaction of their claims for the aggregate Price Per Share relating thereto.
(d) Each of the Exchange Agent, Parent Common Stock, CVRs, cash in lieu 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 fractional shares of Parent Company Common Stock pursuant such amounts as may be required to Section 1.5(c)be deducted or withheld therefrom under the Code or any provision of state, and local or foreign tax law or under any dividends other applicable Legal Requirement. To the extent such amounts are so deducted or distributions with respect withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to shares of Parent Common Stockthe Person to whom such amounts would otherwise have been paid.
(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 portion of Parent Common Stock (or dividends or distributions with respect thereto), any CVRs or for any cash amounts, the Exchange Fund properly delivered to any public official pursuant to as required by any applicable abandoned property law, escheat law or other similar Legal Requirement.
(f) The Exchange Agent shall invest any cash included in the Exchange Fund in United States government securities with a maturity period of thirty (30) days or less or in certificates of deposit issued by any United States bank with at least $5 billion in assets, as directed by Parent, on a daily basis. Any interest and other income resulting from such investments shall be paid to the Surviving Corporation upon termination of the Exchange Fund. In the event the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made by the Exchange Agent thereunder, then Merger Sub or the Surviving Corporation 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 payment obligations.
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