Exchange of Company Certificates. (a) As soon as practicable, the Parent shall designate the Exchange Agent to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after the Effective Time, the Parent shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1. (b) As soon as reasonably practicable after the Effective Time, the Parent shall cause the Exchange Agent to mail to each holder of record of one or more Company Certificates, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt of the Company Certificates by the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) and (ii) instructions for effecting the surrender of Company Certificates in exchange for certificates representing shares of Parent Common Stock together with any dividends and other distributions with respect thereto, any cash in lieu of fractional shares and the Cash Merger Consideration. Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock formerly represented by such Company Certificate and (II) the Cash Merger Consideration, and the Company Certificate so surrendered shall be cancelled. If certificates representing shares of Parent Common Stock are to be registered in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificate. (c) At the close of business on the day during which the Effective Time occurs, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company. (d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock. (e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3, except as otherwise provided by Law.
Appears in 3 contracts
Samples: Merger Agreement (Legato Systems Inc), Merger Agreement (Otg Software Inc), Merger Agreement (Legato Systems Inc)
Exchange of Company Certificates. (a) As soon as practicablePromptly after the Closing Date, the Parent Purchaser, and/or its duly appointed Exchange Agent, shall designate the Exchange Agent to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after the Effective Time, the Parent shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1.
(b) As soon as reasonably practicable after the Effective Time, the Parent shall cause the Exchange Agent to mail mailed to each holder shareholder of record the Company that has accepted the Offer, as of one or more Company Certificatesthe Closing Date, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt of the Company Certificates by the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for the certificates representing shares of Parent Company Capital Stock (the “Company Certificates”) in exchange for IMA Common Stock together with any dividends and other distributions with respect thereto, any cash in lieu of fractional shares and the Cash Merger ConsiderationStock. Upon surrender of a Company Certificate for cancellation to the Exchange AgentAgent or to such other agent or agents reasonably acceptable to the Company as may be appointed by the Purchaser, together with such letter of transmittal, properly completed and duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by the applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company IMA Common Stock formerly (based on the conversion ratio set forth in Section 2.1(a)) for each share of Company Capital Stock represented by such Company Certificate and (II) the Cash Merger ConsiderationCertificate, and the shares of Company Capital Stock represented by such Company Certificate so surrendered shall be cancelledtransferred to the Purchaser. The Purchaser reserves the right for certain U.S. federal income tax purposes, subject to the Company’s consent, to make a cash payment to any tendering Company shareholder in lieu of IMA Common Stock for any part of the Company Capital Stock tendered, but such cash consideration shall not exceed $5,000 dollars in total. This cash consideration may or may not be provided pro rata to exchanging Company shareholders, as determined by the parties for administrative convenience. If certificates representing the shares of Parent IMA Common Stock are to be registered issued in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition of issuance that instructions to that effect shall be delivered to the issuance of such certificates representing shares of Parent Common Stock that Exchange Agent with the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment issuance shall have paid any all transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent Purchaser that such Tax either has been paid or is not applicable. No interest Until surrendered as contemplated by this Section 2.4(b), each Company Certificate held by a shareholder of the Company that has accepted the Offer shall be paid or shall accrue deemed after the Closing Date to represent only the right to receive the shares of IMA Common Stock (based on the cash payable upon the surrender conversion ratio set forth in Section 2.1(a)) for each share of any Company CertificateCapital Stock as contemplated by this Section 2.4(b).
(cb) At In the close event any Company Certificates shall have been lost, stolen or destroyed, then upon the making of business on an affidavit of that fact by the day during which Person claiming such Company Certificate(s) to be lost, stolen or destroyed and, if required by the Effective Time occursPurchaser, the stock transfer books posting by such Person of a bond in such sum as the Company shall Purchaser may reasonably direct as indemnity against any claim that may be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid made against it with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment dateCompany Certificate(s), the amount of dividends or other distributions with a record date after Exchange Agent will issue the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent IMA Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d2.4(b) or 3.4) shall be deemed to have been issued and paid deliverable in full satisfaction respect of all rights pertaining to the Shares formerly shares of Company Capital Stock represented by such lost, stolen or destroyed Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3, except as otherwise provided by Law.
Appears in 2 contracts
Samples: Agreement of Securities Exchange and Plan of Reorganization (INTERACTIVE MULTI MEDIA AUCTION Corp), Agreement of Securities Exchange and Plan of Reorganization (INTERACTIVE MULTI MEDIA AUCTION Corp)
Exchange of Company Certificates. (a) As soon as practicablePrior to the mailing of the Joint Proxy Statement/Prospectus to the record holders of Company Shares, the Parent shall designate a bank or trust company that is reasonably acceptable to the Company to act as exchange agent (the “Exchange Agent”) for payment of the Merger Consideration.
(b) At or prior to the Effective Time, Parent shall deposit with the Exchange Agent to act as agent for (i) certificates representing the holders total number of Parent Shares to receive be issued in trust the shares Merger and (ii) any cash payable in lieu of fractional Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after Section 3.2(e).
(c) At or promptly following the Effective Time, the Parent shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1.
(b) As soon as reasonably practicable after the Effective Time, the Parent Surviving Corporation shall cause the Exchange Agent to mail to each holder of record of one or more Company Certificates, (i) a letter of transmittal (which the “Letter of Transmittal”) that shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt proper delivery of the Company Certificates by to the Exchange Agent and which shall be in such the form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) specify and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for certificates representing shares the Merger Consideration (which instructions shall provide that at the election of Parent Common Stock together with any dividends and other distributions with respect theretothe surrendering holder, any cash in lieu of fractional shares Company Certificates may be surrendered, and the Cash Merger ConsiderationConsideration in exchange therefor collected, by hand delivery). Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter a Letter of transmittal, duly Transmittal properly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate certificates representing that number of whole shares of Parent Common Stock (Shares, if any, into which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock formerly Shares previously represented by such Company Certificate Certificates shall have been converted pursuant to Section 3.1 and any cash, distributions or dividends required to be paid pursuant to Sections 3.2(d) and (IIe) the Cash Merger Considerationbelow, and the Company Certificate Certificates so surrendered shall be cancelledforthwith canceled. If certificates representing shares of Parent Common Stock are The Exchange Agent shall promptly accept such Company Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to be registered effect an orderly exchange thereof in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent that such Tax either has been paid or is not applicableaccordance with customary exchange practices. No interest shall be paid or shall accrue on the Merger Consideration (or the cash payable as described in Sections 3.2(d) and (e) below) payable upon the surrender of any Company Certificate.
(c) At Certificates for the close of business on the day during which the Effective Time occursbenefit of, or be paid to, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares holders of Company Common Stock on the records of the CompanyCertificates.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time Shares shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares Parent Shares represented thereby by reason of Parent Common Stock represented therebythe conversion of Company Shares pursuant to Section 3.1, and no cash payment in lieu of fractional shares Parent Shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, 3.2(e) until the surrender of such Company Certificate is surrendered in accordance with this Article 3III. Subject to the effect of applicable escheat or similar lawsLaws, following surrender of any such Company Certificate, there shall be paid to the holder thereofpaid, without interest, to the Person in whose name the Parent Shares representing such securities are registered (i) promptly after at the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock Shares to which such holder is entitled pursuant to Section 3.4 3.2(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares Parent Shares issued upon conversion of Parent Common Stock, (ii) the Cash Merger ConsiderationCompany Shares, and (iiiii) at the appropriate payment datedate or as promptly as practicable thereafter, the proportionate amount of dividends or other distributions distributions, with (x) a record date with respect thereto after the Effective Time Time, but prior to such surrender, and (y) a payment date subsequent to such surrender surrender, payable with respect to such shares of Parent Common StockShares.
(e) All Notwithstanding any other provision hereof, no fraction of a Parent Share will be issued and no dividend or other distribution, stock split or interest with respect to Parent Shares shall relate to any fractional Parent Share, and such fractional interest shall not entitle the owner thereof to vote or to any rights as a security holder of the Parent Shares. In lieu of any such fractional security, each holder of shares of Company Shares otherwise entitled to a fraction of a Parent Common Stock issued Share in accordance with the provisions of this Article III will be entitled to receive from the Exchange Agent a cash payment in an amount equal to the product of (i) such fractional part of a Parent Share multiplied by (ii) the 20-Day Parent VWAP Price.
(f) All Merger Consideration delivered upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) III shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Company Shares formerly theretofore represented by such Company Certificates. Until surrendered as contemplated by this Section 3.2, subjecteach Company Certificate shall be deemed at all times after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration into which Company Shares theretofore represented by such Company Certificate shall have been converted pursuant to this Article III. No interest will be paid or will accrue on the cash payable upon the surrender of any Company Certificate.
(g) At the Effective Time, howeverthe stock transfer books of the Company shall be closed, to and there shall be no further registration of transfers on the obligation stock transfer books of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date Corporation of Company Shares that were outstanding immediately prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3III.
(h) If any Company Certificate shall have been lost, except stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and, if required by the Exchange Agent, the posting by such Person of a bond or other surety in such amount as the Exchange Agent may reasonably direct as indemnity against any claim that may be made with respect to such Company Certificate and subject to such other reasonable conditions as the Exchange Agent may impose, the Exchange Agent shall deliver in exchange for such Company Certificate the Merger Consideration into which Company Shares theretofore represented by such Company Certificate shall have been converted pursuant to this Article III.
(i) If any payment under this Article III is to be made to a Person other than the Person in whose name any Company Certificate surrendered in exchange therefor is registered, it shall be a condition of payment that the Company Certificate so surrendered shall be properly endorsed or otherwise provided in proper form for transfer 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 Company Certificate surrendered or such Person shall establish to the satisfaction of the Surviving Corporation that such Tax has been paid or is not applicable.
(j) The Exchange Agent shall invest any funds held by it for purposes of this Section 3.2 as directed by Parent, on a daily basis. Any interest and other income resulting from such investments shall be paid to Parent.
(k) Parent and/or the Exchange Agent shall be entitled to deduct and withhold from the consideration or other amounts otherwise payable pursuant to this Agreement (in whatever form) to the holders of Company Shares an amount equal to the amounts, if any, required to be deducted or withheld under any provision of U.S. federal Tax Law, or any provision of state, local or foreign Tax Law, with respect to the making of such payment. Amounts so withheld shall promptly be paid to the appropriate Tax authority and shall be treated for all purposes of this Agreement as having been paid to the holders of Company Shares in respect of which such deduction or withholding was made.
(l) None of Parent, Merger Sub, the Company or the Exchange Agent shall be liable to any Person in respect of any Parent Shares (or dividends or distributions with respect thereto) or cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. Any Parent Shares or portion of the cash that has been made available to the Exchange Agent pursuant to this Section 3.2 that remains unclaimed by the holder of any Company Certificate six (6) months after the Effective Time, shall be returned to Parent and any such holder who has not exchanged such holder’s Company Certificate prior to such time shall thereafter look only to Parent for any claim for Merger Consideration, any cash in lieu of fractional shares of Parent Shares to which they are entitled pursuant to Section 3.2(e) and any dividends or other distributions with respect to Parent Shares to which they are entitled pursuant to Section 3.2(d) hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Illumina Inc), Merger Agreement (Solexa, Inc.)
Exchange of Company Certificates. (a) As soon as practicable, the Parent shall designate the Exchange Agent to act as agent for the holders of Shares of, and to receive in trust trust, the shares of Parent Common Stock, funds to be paid for fractional shares Stock and funds to pay the Cash Merger Consideration, to which holders of the Shares such shares shall become entitled pursuant to this Article 3. From time to time after At the Effective Time, the Parent shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares such shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.13.1 (the "Exchange Fund").
(b) As soon as reasonably practicable after the Effective Time (but in no event later than seven days after the Effective Time), the Parent shall cause the Exchange Agent to mail to each holder of record of one or more Company Certificates, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt delivery of the Company Certificates by to the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) and (ii) instructions for effecting the surrender of Company Certificates in exchange for certificates representing shares of Parent Common Stock together with any dividends and other distributions with respect thereto, thereto and any cash in lieu of fractional shares and the Cash Merger Considerationshares. Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock formerly represented by such Company Certificate and (II) the Cash Merger Consideration3, and the Company Certificate so surrendered shall be cancelled. If certificates representing shares of Parent Common Stock are to be registered in the name of a Person, Person or cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificate.
(c) At the close of business on the day during which the Effective Time occurs, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder3.5, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 3.5 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, and (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d3.4(d) or 3.43.5) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3, except as otherwise provided by Law.
Appears in 2 contracts
Samples: Merger Agreement (Valueclick Inc/Ca), Merger Agreement (Be Free Inc)
Exchange of Company Certificates. (a) As soon as reasonably practicable, the Parent shall designate the Exchange Agent to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after but no more than two Business Days following the Effective Time, the Parent shall deposit, or cause to be deposited, deposit with the Exchange Agent for the benefit of holders of Agent, (i) one or more certificates representing Parent Shares sufficient to deliver the aggregate consideration Stock Consideration and (ii) cash sufficient to which such holders shall be entitled at deliver the Effective Time aggregate Cash Consideration, cash payable in lieu of fractional Parent Shares pursuant to Section 3.13.3(d) and any dividends or other distributions pursuant to Section 3.3(c).
(b) As soon as reasonably practicable after of or promptly following the Effective Time, the Parent Surviving Corporation shall cause the Exchange Agent to mail to (and, if permitted by the Exchange Agent, to make available for collection in person) each holder of record of one or more Company CertificatesCertificates (other than Company Certificates representing Dissenting Shares) that has not timely submitted a properly completed and executed Form of Election accompanied by an appropriately endorsed Company Certificate representing all of the Company Shares owned by that stockholder (or, alternatively, by an appropriate guarantee of delivery), (i) a letter of transmittal (the "Letter of Transmittal"), a copy of which shall have been provided to the Company prior to the mailing thereof, that shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt proper delivery of the Company Certificates by to the Exchange Agent and which shall be in such customary form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) specify and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for certificates representing shares the Merger Consideration (which instructions shall provide that at the election of Parent Common Stock together with any dividends and other distributions with respect theretothe surrendering holder, any cash in lieu of fractional shares Company Certificates may be surrendered, and the Cash Merger ConsiderationConsideration in exchange therefor collected, by hand delivery). Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter a Letter of transmittal, duly Transmittal properly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agent, Agent the holder of such Company Certificate shall be entitled to receive in exchange therefor (xA) a certificate certificates representing that number of whole shares of Parent Common Stock (Shares, if any, into which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares Company Shares previously represented by such Company Certificates shall have been converted pursuant to Section 3.1 and/or (B) the amount of cash, if any, into which the number of Company Common Stock Shares previously represented by such Company Certificates shall have been converted pursuant to Section 3.1 for each Company Share formerly represented by such Company Certificate and (II) the Cash Merger ConsiderationCertificate, and the Company Certificate Certificates so surrendered shall be cancelledforthwith canceled. If certificates representing shares of Parent Common Stock are The Exchange Agent shall promptly accept such Company Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to be registered effect an orderly exchange thereof in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent that such Tax either has been paid or is not applicableaccordance with customary exchange practices. No interest shall be paid or shall accrue on the Merger Consideration (or the cash payable as described in Section 3.3(c) and (d) below) payable upon the surrender of any Company CertificateCertificates for the benefit of, or be paid to, the holders of Company Certificates.
(c) At the close of business on the day during which the Effective Time occurs, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock Shares with a record date at or after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares Parent Shares represented thereby by reason of Parent Common Stock represented thereby, the conversion of Company Shares pursuant to Sections 3.1 and 3.2 and no cash payment in lieu of fractional shares Parent Shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, 3.3(d) until the surrender of such Company Certificate is surrendered in accordance with this Article 3III. Subject to the effect of applicable escheat or similar lawsLaws, following surrender of any such Company Certificate, there shall be paid to the holder thereofpaid, without interest, to the Person in whose name the Parent Shares representing such securities are registered (i) promptly after at the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock Shares to which such holder is entitled pursuant to Section 3.4 3.3(d) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares Parent Shares issued upon conversion of Parent Common Stock, (ii) the Cash Merger ConsiderationCompany Shares, and (iiiii) at the appropriate payment datedate or as promptly as practicable thereafter, the proportionate amount of dividends or other distributions distributions, with (x) a record date with respect thereto after the Effective Time Time, but prior to such surrender, and (y) a payment date subsequent to such surrender surrender, payable with respect to such Parent Shares.
(d) Notwithstanding any other provision hereof, no fraction of a Parent Share will be issued and no dividend or other distribution, stock split or interest with respect to Parent Shares shall relate to any fractional Parent Share, and such fractional interest shall not entitle the owner thereof to vote or to any rights as a security holder of the Parent Shares. In lieu of any such fractional Parent Share, each holder of shares of Company Shares otherwise entitled to a fraction of a Parent Common StockShare in accordance with the provisions of this Article III will be entitled to receive from the Exchange Agent a cash payment in an amount equal to the product of (i) such fractional part of a Parent Share multiplied by (ii) the closing price for a Parent Share on the NYSE Composite Tape on the Closing Date.
(e) All shares of Parent Common Stock issued Merger Consideration delivered upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) III shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Company Shares formerly theretofore represented by such Company Certificates. Until surrendered as contemplated by this Section 3.3, subjecteach Company Certificate shall be deemed at all times after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration into which Company Shares theretofore represented by such Company Certificate shall have been converted pursuant to this Article III. No interest will be paid or will accrue on the cash payable upon the surrender of any Company Certificate.
(f) At the Effective Time, howeverthe stock transfer books of the Company shall be closed, to and there shall be no further registration of transfers on the obligation stock transfer books of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date Corporation of Company Shares that were outstanding immediately prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3III.
(g) If any Company Certificate shall have been lost, except stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and, if required by the Exchange Agent, the posting by such Person of a bond or other surety in such amount as the Exchange Agent may reasonably direct as indemnity against any claim that may be made with respect to such Company Certificate and subject to such other reasonable conditions as the Exchange Agent may impose, the Exchange Agent shall deliver in exchange for such Company Certificate the Merger Consideration into which Company Shares theretofore represented by such Company Certificate shall have been converted pursuant to this Article III.
(h) If any payment under this Article III is to be made to a Person other than the Person in whose name any Company Certificate surrendered in exchange therefor is registered, it shall be a condition of payment that Company Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer 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 Company Certificate surrendered or such Person shall establish to the satisfaction of the Surviving Corporation that such Tax has been paid or is not applicable.
(i) The Exchange Agent shall invest any funds held by it for purposes of this Section 3.3 as directed by Parent, on a daily basis; provided that such investments shall be in obligations of or guaranteed by Lawthe United States of America, in commercial paper obligations rated A-1 or P-1 or better by Moody's Investors Service, Inc. or Standard & Poor's Corporation, respxxxxxxxy, or in certificates of deposit, bank repurchase agreements or banker's acceptances of commercial banks. Any interest and other income resulting from such investments shall be paid to Parent.
(j) Parent and/or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to the holders of Company Shares such amounts, if any, as are required to be deducted or withheld under any provision of U.S. federal tax law, or any provision of state, local or foreign tax law, with respect to the making of such payment. Amounts so withheld shall be treated for all purposes of this Agreement as having been paid to the holders of Company Shares in respect of which such deduction or withholding was made.
(k) None of Parent, Merger Sub, the Company or the Exchange Agent shall be liable to any Person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. Any portion of the cash that has been made available to the Exchange Agent pursuant to this Section 3.3 that remains unclaimed by the holder of any Company Certificate six months after the Effective Time, shall be returned to Parent and any such holder who has not exchanged such holder's Company Certificate prior to such time shall thereafter look only to Parent for any claim for Merger Consideration hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Lilly Eli & Co), Merger Agreement (Applied Molecular Evolution Inc)
Exchange of Company Certificates. (a) As soon as reasonably practicable, the Parent shall designate the Exchange Agent to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after but no later than the Effective Time, the Parent Newco shall deposit, deposit or cause to be deposited, with a bank or trust company selected by Newco and reasonably acceptable to the Exchange Agent Company (the “Paying Agent”) for exchange and payment in accordance with this Article III, an amount in cash sufficient to deliver the aggregate Merger Consideration in exchange for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1Company Certificates.
(b) As soon as reasonably practicable after of or promptly following the Effective Time, the Parent Surviving Corporation shall cause the Exchange Paying Agent to mail to each holder of record of one Company Certificates (other than Company Certificates representing Dissenting Shares) that has not previously surrendered his, her or more its Company Certificates, (i) a letter of transmittal in customary form with such other customary provisions as Newco may reasonably specify (which the “Letter of Transmittal”), that shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt proper delivery of the Company Certificates by to the Exchange Paying Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for certificates representing shares the Merger Consideration (which instructions shall provide that at the election of Parent Common Stock together with any dividends and other distributions with respect theretothe surrendering holder, any cash in lieu of fractional shares Company Certificates may be surrendered, and the Cash Merger ConsiderationConsideration in exchange therefor collected, by hand delivery). Upon surrender of a Company Certificate for cancellation to the Exchange Paying Agent, together with such letter a Letter of transmittal, duly Transmittal properly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Paying Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (the Merger Consideration into which shall be credited in street name through Depository Trust the Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock formerly Shares previously represented by such Company Certificate shall have been converted pursuant to Section 3.1 and (II) the Cash Merger Consideration, and the any Company Certificate so surrendered shall be forthwith cancelled. If certificates representing shares of Parent Common Stock are to be registered in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered The Paying Agent shall promptly accept such Company Certificate is registered, it shall be a condition upon compliance with such reasonable terms and conditions as the Paying Agent may impose to the issuance of such certificates representing shares of Parent Common Stock that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise effect an orderly exchange thereof in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent that such Tax either has been paid or is not applicableaccordance with customary exchange practices. No interest shall accrue on the Merger Consideration payable upon the surrender of any Company Certificate for the benefit of, or be paid to, the holders of Company Certificates.
(c) All Merger Consideration delivered upon the surrender of Company Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to Company Shares theretofore represented by such Company Certificates. Until surrendered as contemplated by this Section 3.2, each Company Certificate shall be deemed at all times after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration into which Company Shares theretofore represented by such Company Certificate shall have been converted pursuant to this Article III. No interest will be paid or shall will accrue on the cash payable upon the surrender of any Company Certificate.
(cd) At the close of business on the day during which the Effective Time occursTime, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates, subject, however, to the obligation stock transfer books of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date Corporation of Company Shares that were outstanding immediately prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Paying Agent for any reason, they shall be canceled cancelled and exchanged as provided in this Article 3III.
(e) If any Company Certificate shall have been lost, except stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and, if required by the Paying Agent, the posting by such Person of a bond or other surety in such customary amount as the Paying Agent may reasonably direct as indemnity against any claim that may be made with respect to such Company Certificate and subject to such other reasonable and customary conditions as the Paying Agent may impose, the Paying Agent shall deliver in exchange for such Company Certificate the Merger Consideration into which Company Shares theretofore represented by such Company Certificate shall have been converted pursuant to this Article III.
(f) If any payment under this Article III is to be made to a Person other than the Person in whose name any Company Certificate surrendered in exchange therefor is registered, it shall be a condition of payment that the Company Certificate so surrendered shall be properly endorsed or otherwise provided in proper form for transfer 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 Company Certificate surrendered or such Person shall establish to the satisfaction of the Surviving Corporation that such Taxes have been paid or are not applicable.
(g) The Paying Agent shall invest any funds held by it for purposes of this Section 3.2 as directed by the Surviving Corporation, on a daily basis. Any interest and other income resulting from such investments shall be paid to the Surviving Corporation.
(h) Newco, the Company or the Paying Agent, as the case may be, shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to the holders of Company Shares such amounts, if any, as are required to be deducted or withheld under any provision of U.S. federal tax Law., or any provision of state, local or foreign tax Law, with respect to the making of such
Appears in 2 contracts
Samples: Merger Agreement (Metro-Goldwyn-Mayer Inc), Merger Agreement (LOC Acquisition CO)
Exchange of Company Certificates. (a) As soon as practicable, the Parent shall designate the Exchange Agent a bank or trust company to act as agent for the holders of the Shares in connection with the Merger to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3SECTION 3.1(c). From time to time after At the Effective Time, the Parent or Purchaser shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1SECTION 3.1(c). Such funds shall be invested as reasonably directed by Parent or the Surviving Corporation in reasonably prudent investments pending payment thereof by the Exchange Agent to holders of the Shares. Earnings from such investments shall be the sole and exclusive property of the Surviving Corporation and no part of such earnings shall accrue to the benefit of holders of Shares and any Taxes payable on such earnings shall be the sole obligation of the Surviving Corporation.
(b) As soon as reasonably practicable after the Effective Time, the Parent shall cause the Exchange Agent to mail to each holder of record of one or more Company Certificates, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt delivery of the Company Certificates by to the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for certificates representing shares payment of Parent Common Stock together with any dividends and other distributions with respect thereto, any cash in lieu of fractional shares and the Cash Merger Consideration. Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agentexecuted, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock Merger Consideration for each Share formerly represented by such Company Certificate and (II) the Cash Merger Considerationinto which such Shares shall have been converted pursuant to SECTION 3.1, and the Company Certificate so surrendered shall be cancelled. If certificates representing shares payment of Parent Common Stock are to be registered in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock payment that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance payment of certificates representing shares of Parent Common Stock the Merger Consideration to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent Surviving Corporation that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificate.
(c) At the close of business on the day during which the Effective Time occursTime, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock the Shares on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of At any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, time following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, six (i6) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, months after the Effective Time, the Surviving Corporation shall be entitled to require the Exchange Agent to deliver to it any funds (including any earnings with respect thereto) which had been made available to the Exchange Agent and which have not been disbursed to holders of Company Certificates are presented Certificates, and thereafter such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) and only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Company Certificates, without any interest thereon. Notwithstanding the foregoing, neither Parent, the Surviving Corporation nor the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3liable to any holder of a Company Certificate for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, except as otherwise provided by Lawescheat or similar law.
Appears in 2 contracts
Samples: Merger Agreement (Convergent Holding Corp), Merger Agreement (Convergent Holding Corp)
Exchange of Company Certificates. (a) As soon as practicable, the Parent shall designate the Exchange Agent At or prior to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after the Effective Time, the (i) Parent or Holdco shall deposit, deposit (or cause to be deposited, ) with the Exchange Agent Agent, for the benefit of the holders of Shares Company Shares, for exchange in accordance with this Article III, cash in the amount sufficient to pay the aggregate consideration cash portion of the Merger Consideration or the Alternative Structure Merger Consideration, as the case may be, and (ii) Parent or Holdco shall deposit (or cause to which such be deposited) with the Exchange Agent, for the benefit of the holders shall be entitled at of Company Shares, Holdco Certificates and certificates for Holdco Units or Parent Units, as the Effective Time case may be, for exchange in accordance with this Article III (the cash and shares deposited pursuant to Section 3.1.clauses (i) and
(b) As soon as reasonably practicable after the Effective TimeTime and in any case no later than 5 days thereafter, the Parent shall cause the Exchange Agent to shall mail to each holder of record of one or more Company Certificates, Shares immediately prior to the Effective Time (other than Company Shares covered by valid Stock Elections and Excluded Shares) (i) a letter of transmittal (the "Company Letter of Transmittal") (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt delivery of the such Company Certificates by to the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as Parent and the Parent may reasonably specify) Company shall agree prior to the Effective Time), and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock together with any dividends the Cash and other distributions Unit Consideration with respect theretoto the Company Shares formerly represented thereby. As of the Election Deadline all holders of Company Shares immediately prior to the Effective Time that have not submitted to the Exchange Agent or have properly revoked an effective, any cash in lieu properly completed Form of fractional shares and the Cash Merger Consideration. Election shall be deemed not to have made a valid Stock Election.
(c) Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter the Company Letter of transmittalTransmittal, duly executed and completed in accordance with the instructions theretoexecuted, and such other documents as may other
(d) No fractional Holdco Shares shall be reasonably required by issued pursuant to the Exchange AgentCompany Merger. In lieu of the issuance of any fractional Holdco Shares, cash adjustments will be paid to holders in respect of any fractional Holdco Share that would otherwise be issuable, and the holder amount of such Company Certificate cash adjustment shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock formerly represented by such Company Certificate and (II) the Cash Merger Consideration, fractional amount and the Company Certificate so surrendered shall be cancelled. If certificates representing shares of Average Parent Common Stock are to be registered in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company CertificateShare Price.
(c) At the close of business on the day during which the Effective Time occurs, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3, except as otherwise provided by Law.
Appears in 1 contract
Exchange of Company Certificates. (a) As soon as practicablereasonably practicable following the Closing Date and in no event more than two business days after the Closing Date (provided Buyer timely receives from the Shareholders’ Representatives all information reasonably necessary for completion of the Letters of Transmittal), the Parent Buyer shall designate the Exchange Agent to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after the Effective Time, the Parent shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1.
(b) As soon as reasonably practicable after the Effective Time, the Parent shall cause the Exchange Agent to mail send by overnight courier to each holder of record of one or more Company Certificates, (i) a letter of transmittal (a “Letter of Transmittal”), which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt delivery of the Company Certificates by the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for certificates representing shares payment of Parent Common Stock together with any dividends and other distributions with respect thereto, any cash in lieu the Merger Consideration upon consummation of fractional shares and the Cash Merger Consideration. Merger.
(b) Upon surrender of a Company Certificate for cancellation to the Exchange AgentBuyer, together with such letter a Letter of transmittalTransmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agentexecuted, the holder of the shares represented by such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number the portion of whole shares of Parent Common Stock (which shall be credited the Merger Consideration, payable in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Lawaccordance with Sections 4.2(c) and payment 4.3, for each share of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Preferred Stock formerly represented by such Company Certificate and (II) the Cash Merger ConsiderationCertificate, and the Company Certificate so surrendered shall be cancelled. If certificates representing shares payment of Parent Common Stock are to be registered in such portion of the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered such Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock payment that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance payment of certificates representing shares the portion of Parent Common Stock the Merger Consideration to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent Surviving Corporation that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificate.
(c) At the close of business on the day during which the Effective Time occursTime, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common the Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3, except as otherwise provided by Law.
Appears in 1 contract
Exchange of Company Certificates. (a) As soon as practicable, the Parent shall designate the Exchange Agent At or prior to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after the Effective Time, the (i) Parent or Holdco shall deposit, deposit (or cause to be deposited) with the Exchange Agent, for the benefit of the holders of Company Shares, for exchange in accordance with this Article III, cash in the amount sufficient to pay the aggregate cash portion of the Merger Consideration or the Alternative Structure Merger Consideration, as the case may be, and (ii) Parent or Holdco shall deposit (or cause to be deposited) with the Exchange Agent, for the benefit of the holders of Company Shares, Holdco Certificates and certificates for Holdco Units or Parent Units, as the case may be, for exchange in accordance with this Article III (the cash and shares deposited pursuant to clauses (i) and (ii) being hereinafter referred to as the "Exchange Fund"). The Holdco Shares and Holdco Units or Parent Units, as the case may be, into which Company Shares are converted pursuant to the Company Merger shall be deemed to have been issued at the Effective Time. Any cash (including the cash portion of the Cash and Unit Consideration) deposited with the Exchange Agent shall be invested by the Exchange Agent as Parent reasonably directs, provided that such investments shall be in obligations of or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated P-1 and A-1 or better by Xxxxx'x Investors Service, Inc. and Standard & Poor's Corporation, respectively, and any net profit resulting from, or interest or income produced by, such investments will be payable to the Company or Parent, as Parent directs. Parent shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of Company Shares for the benefit of holders of Shares Merger Consideration or the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1Alternative Structure Merger Consideration.
(b) As soon as reasonably practicable after the Effective TimeTime and in any case no later than 5 days thereafter, the Parent shall cause the Exchange Agent to shall mail to each holder of record of one or more Company Certificates, Shares immediately prior to the Effective Time (other than Company Shares covered by valid Stock Elections and Excluded Shares) (i) a letter of transmittal (the "Company Letter of Transmittal") (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt delivery of the such Company Certificates by to the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as Parent and the Parent may reasonably specify) Company shall agree prior to the Effective Time), and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock together with any dividends the Cash and other distributions Unit Consideration with respect theretoto the Company Shares formerly represented thereby. As of the Election Deadline all holders of Company Shares immediately prior to the Effective Time that have not submitted to the Exchange Agent or have properly revoked an effective, any cash in lieu properly completed Form of fractional shares and the Cash Merger Consideration. Election shall be deemed not to have made a valid Stock Election.
(c) Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter the Company Letter of transmittalTransmittal, duly executed and completed in accordance with the instructions theretoexecuted, and such other documents as may be reasonably required by Parent or the Exchange AgentAgent shall reasonably request, the holder of such Company Certificate shall be entitled to receive in exchange therefor (xi) a certified or bank cashier s check in the amount equal to the cash, if any, which such holder has the right to receive pursuant to the provisions of this Article III (including any cash in lieu of fractional Holdco Shares pursuant to Section 3.7(d)), (ii) a certificate representing that number of whole shares Holdco Units or Parent Units, if any, and (iii) a Holdco Certificate representing that number of Parent Common Stock (which shall be credited in street name through Depository Trust Company Holdco Shares, if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares any, which such holder has the right to receive pursuant to this Article 3 and III (y) cash in an each case less the amount equal to the product of (I) the number of shares of Company Common Stock formerly represented by such Company Certificate and (II) the Cash Merger Considerationany required withholding taxes), and the Company Certificate so surrendered shall forthwith be cancelledcanceled. If certificates representing shares of Parent Common Stock are to be registered in the name of a PersonUntil surrendered as contemplated by this Section 3.7, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered each Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid deemed at any transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificate.
(c) At the close of business on the day during which time after the Effective Time occursto represent only the right to receive the Merger Consideration or the Alternative Structure Merger Consideration, as the stock transfer books of case may be, with respect to the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the CompanyShares formerly represented thereby.
(d) No dividends or other distributions with respect fractional Holdco Shares shall be issued pursuant to the Parent Common Stock with a record date after Company Merger. In lieu of the Effective Time shall issuance of any fractional Holdco Shares, cash adjustments will be paid to the holder holders in respect of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented therebyfractional Holdco Share that would otherwise be issuable, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) adjustment shall be deemed to have been issued and paid in full satisfaction of all rights pertaining equal to the Shares formerly represented by product of such Company Certificates, subject, however, to fractional amount and the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3, except as otherwise provided by LawAverage Parent Share Price.
Appears in 1 contract
Samples: Merger Agreement (Nisource Inc)
Exchange of Company Certificates. (a) As soon as practicable, the Parent shall designate the Exchange Agent a bank or trust company to act as agent for the holders of the Shares in connection with the Merger to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3Section 3.1(c). From time to time after At the Effective Time, the Parent or Purchaser shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.13.1(c). Such funds shall be invested as directed by Parent or the Surviving Corporation pending payment thereof by the Exchange Agent to holders of the Shares. Earnings from such investments shall be the sole and exclusive property of Purchaser or the Surviving Corporation, as applicable, and no part of such earnings shall accrue to the benefit of holders of Shares.
(b) As soon as reasonably practicable after the Effective Time, the Parent shall cause the Exchange Agent to mail to each holder of record of one or more Company Certificates, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt delivery of the Company Certificates by to the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for certificates representing shares payment of Parent Common Stock together with any dividends and other distributions with respect thereto, any cash in lieu of fractional shares and the Cash Merger Consideration. Upon surrender of a Company Certificate for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agentexecuted, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock Merger Consideration for each Share formerly represented by such Company Certificate and (II) the Cash Merger ConsiderationCertificate, and the Company Certificate so surrendered shall be cancelled. If certificates representing shares payment of Parent Common Stock are to be registered in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock payment that the Company Certificate so surrendered shall be properly endorsed indorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance payment of certificates representing shares of Parent Common Stock the Merger Consideration to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent Surviving Corporation that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificate.
(c) At the close of business on the day during which the Effective Time occursTime, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock the Shares on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of At any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, time following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, six months after the Effective Time, the Surviving Corporation shall be entitled to require the Exchange Agent to deliver to it any funds (including any earnings with respect thereto) which had been made available to the Exchange Agent and which have not been disbursed to holders of Company Certificates are presented Certificates, and thereafter such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) and only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Company Certificates. Notwithstanding the foregoing, neither Parent, the Surviving Corporation nor the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3liable to any holder of a Company Certificate for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, except as otherwise provided by Lawescheat or similar law.
Appears in 1 contract
Exchange of Company Certificates. (a) As soon as practicable, the Parent shall designate a bank or trust company reasonably acceptable to the Exchange Agent Company to act as agent for the holders of the Shares in connection with the Merger and to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3Section 3.1(c) (the "Exchange Agent"). From time At or prior to time after the Effective Time, the Parent or Purchaser shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares Shares, Company Stock Options and Warrants, the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.13.1(c). Such funds shall be invested as directed by Parent or the Surviving Corporation pending payment thereof by the Exchange Agent to holders of the Shares 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, (iii) commercial paper rated the highest quality by either Xxxxx'x Investors Services, Inc. or Standard & Poor's Corporation, or (iv) certificates of deposit, bank repurchase agreements or bankers' acceptances of commercial banks with capital exceeding $500 million. Earnings from such investments shall be the sole and exclusive property of Purchaser or the Surviving Corporation, as applicable, and no part of such earnings shall accrue to the benefit of holders of Shares. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration out of such aggregate consideration.
(b) As soon as reasonably practicable after the Effective Time, the but in any event no later than three (3) Business Days thereafter, Parent shall cause the Exchange Agent to mail to each holder of record of one or more Company Certificates, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt delivery of the Company Certificates by to the Exchange Agent and shall be in such customary form and have contain such other customary provisions not inconsistent with this Agreement as the Company and the Parent may reasonably specify) agree on and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for certificates representing shares payment of Parent Common Stock together with any dividends and other distributions with respect thereto, any cash in lieu of fractional shares and the Cash Merger Consideration. Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required requested by the Exchange Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock Merger Consideration for each Share formerly represented by such Company Certificate and (II) the Cash Merger Consideration, and the Company Certificate so surrendered shall be cancelled. If certificates representing shares payment of Parent Common Stock are to be registered in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock payment that the Company Certificate so surrendered shall be properly endorsed indorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other non-income Taxes required by reason of the issuance payment of certificates representing shares of Parent Common Stock the Merger Consideration to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent Surviving Corporation that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificate.
(c) All cash paid upon surrender of the Company Certificates in accordance with this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates. At the close of business on the day during which the Effective Time occursTime, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock the Shares on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reasonreason except notation thereon that a shareholder of the Company has elected to exercise its right to appraisal pursuant to the MGBCL, they then such Company Certificates shall be canceled cancelled and exchanged as provided in this Article 3III.
(d) At any time following the first anniversary of the Effective Time, except the Surviving Corporation shall be entitled to require the Exchange Agent to deliver to it any funds (including any earnings with respect thereto) which had been made available to the Exchange Agent and which have not been disbursed to holders of Company Certificates, and thereafter such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) and only as otherwise provided general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Company Certificates, without any interest thereon. Notwithstanding the foregoing, neither Parent, the Surviving Corporation nor the Exchange Agent shall be liable to any holder of a Company Certificate for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by Lawthe Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond in such amount as Parent may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will pay in exchange for such lost, stolen or destroyed Certificate the Merger Consideration (or the Company shall use its reasonable efforts to make such other arrangements as are necessary to ensure that such Person claiming such Certificate to be lost, stolen or destroyed and posting such indemnity bond shall receive the Offer Price in respect of the Shares represented by such Certificate).
Appears in 1 contract
Exchange of Company Certificates. (a) As soon and A-1 or better by Xxxxx'x Investors Service, Inc. and Standard & Poor's Corporation, respectively, and any net profit resulting from, or interest or income produced by, such investments will be payable to the Company or Parent, as practicable, the Parent directs. Parent shall designate pay all charges and expenses, including those of the Exchange Agent to act as agent Agent, in connection with the exchange of Company Shares for the holders of Shares to receive in trust Merger Consideration or the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Alternative Structure Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after the Effective Time, the Parent shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1.
(b) As soon as reasonably practicable after the Effective TimeTime and in any case no later than 5 days thereafter, the Parent shall cause the Exchange Agent to shall mail to each holder of record of one or more Company Certificates, Shares immediately prior to the Effective Time (other than Company Shares covered by valid Stock Elections and Excluded Shares) (i) a letter of transmittal (the "COMPANY LETTER OF TRANSMITTAL") (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt delivery of the such Company Certificates by to the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as Parent and the Parent may reasonably specify) Company shall agree prior to the Effective Time), and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock together with any dividends the Cash and other distributions Unit Consideration with respect theretoto the Company Shares formerly represented thereby. As of the Election Deadline all holders of Company Shares immediately prior to the Effective Time that have not submitted to the Exchange Agent, any cash in lieu or have properly revoked an effective, properly completed Form of fractional shares and the Cash Merger Consideration. Election, shall be deemed not to have made a valid Stock Election.
(c) Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter the Company Letter of transmittalTransmittal, duly executed and completed in accordance with the instructions theretoexecuted, and such other documents as may be reasonably required by Parent or the Exchange AgentAgent shall reasonably request, the holder of such Company Certificate shall be entitled to receive in exchange therefor (xi) a certified or bank cashier s check in the amount equal to the cash, if any, which such holder has the right to receive pursuant to the provisions of this Article III (including any cash in lieu of fractional Holdco Shares pursuant to Section 3.7(d)), (ii) a certificate representing that number of whole shares Holdco Units or Parent Units, if any, and (iii) a Holdco Certificate representing that number of Parent Common Stock (which shall be credited in street name through Depository Trust Company Holdco Shares, if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares any, which such holder has the right to receive pursuant to this Article 3 and III (y) cash in an each case less the amount equal to the product of (I) the number of shares of Company Common Stock formerly represented by such Company Certificate and (II) the Cash Merger Considerationany required withholding taxes), and the Company Certificate so surrendered shall forthwith be cancelledcanceled. If certificates representing shares of Parent Common Stock are to be registered in the name of a PersonUntil surrendered as contemplated by this Section 3.7, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered each Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid deemed at any transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificate.
(c) At the close of business on the day during which time after the Effective Time occursto represent only the right to receive the Merger Consideration or the Alternative Structure Merger Consideration, as the stock transfer books of case may be, with respect to the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the CompanyShares formerly represented thereby.
(d) No dividends or other distributions with respect fractional Holdco Shares shall be issued pursuant to the Parent Common Stock with a record date after Company Merger. In lieu of the Effective Time shall issuance of any fractional Holdco Shares, cash adjustments will be paid to the holder holders in respect of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented therebyfractional Holdco Share that would otherwise be issuable, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) adjustment shall be deemed to have been issued and paid in full satisfaction of all rights pertaining equal to the Shares formerly represented by product of such Company Certificates, subject, however, to fractional amount and the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3, except as otherwise provided by LawAverage Parent Share Price.
Appears in 1 contract
Samples: Merger Agreement (Nisource Inc)
Exchange of Company Certificates. (a) As soon Acquisition Co. shall authorize Continental Stock Transfer & Trust Company (or such other person or persons as practicable, shall be acceptable to Acquisition Co. and Company) as exchange agent (the Parent shall designate the “Exchange Agent to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger ConsiderationAgent”), to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after the Effective Time, the Parent shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1.
(b) As soon as reasonably practicable after the Effective Time, the Parent shall cause the Exchange Agent to mail send to each holder of record shares of one or more Company Certificates, (i) a Common Stock which shall have been converted into Acquisition Co. Common Stock an appropriate letter of transmittal for purposes of surrendering such holder’s certificates for such shares for exchange pursuant hereto (which shall specify that delivery shall be effected, and risk of loss and title to a certificate which immediately prior to the Effective Time shall have represented any shares of Company Certificates Common Stock converted in the Merger (a “Company Certificate”) shall pass, only upon receipt delivery of the such Company Certificates by Certificate to the Exchange Agent and shall be in such a form and have such other provisions not inconsistent with this Agreement as the Parent Acquisition Co. may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for the property described in this Section 1.9.
(b) As soon as practicable after the Effective Time, Acquisition Co. shall deposit with the Exchange Agent, in trust for the holders of Company Certificates and Company Options: (i) an amount of cash sufficient to pay all amounts of Merger Consideration payable under this Agreement, including such cash required in accordance with Section 1.8(b), (ii) certificates representing a sufficient number of shares of Parent Acquisition Co. Common Stock together with (each, an “Acquisition Co. Certificate”) to effect the conversion of Company Common Stock into Acquisition Co. Common Stock, and (iii) a global security representing all of the Contingent Share Rights. The Exchange Agent shall invest any dividends cash deposited by Acquisition Co. hereunder as directed by Surviving Corporation, on a daily basis. Any interest and other distributions with respect thereto, any cash in lieu of fractional shares and the Cash Merger Consideration. income resulting from such investments shall be paid to Acquisition Co.
(c) Upon surrender of a Company Certificate for cancellation to the Exchange AgentAgent of all Company Certificate(s) held by any holder of record of a Company Certificate, together with such letter of transmittaltransmittal duly executed, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (xi) a certificate an Acquisition Co. Certificate representing that the number of whole shares of Parent Acquisition Co. Common Stock into which the shares of Company Common Stock represented by the surrendered Company Certificate(s) shall have been converted at the Effective Time pursuant to Section 1.8(a), (ii) cash representing the amount into which the shares of Company Common Stock represented by the surrendered Company Certificate(s) shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Lawhave been converted at the Effective Time pursuant to 1.8(a), without interest, (iii) and payment of cash in lieu of any fractional shares which such holder has share of Acquisition Co. Common Stock in accordance with Section 1.8(b), and (iv) a proportionate share of the right Additional Merger Consideration, if any. The Company Certificate(s) so surrendered shall forthwith be cancelled. Acquisition Co. or the Exchange Agent shall be entitled to receive deduct and withhold from the consideration otherwise payable pursuant to this Article 3 and (y) cash in an amount equal Agreement to the product of (I) the number any holder of shares of Company Common Stock formerly such amounts as Acquisition Co. or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under the Code or under any provision of state, local or foreign Tax (as defined in Section 2.14 hereof) law. To the extent that amounts are so withheld by Acquisition Co. or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Acquisition Co. or the Exchange Agent.
(d) Until surrendered as contemplated by Section 1.9(c), each Company Certificate, other than in respect of the Dissenting Shares, shall be deemed at any time after the Effective Time to represent only the right to receive (i) certificates representing the shares of Acquisition Co. Common Stock into which the shares of Company Common Stock represented by such Company Certificate have been converted, (ii) cash representing the amount into which the shares of Company Stock represented by such Company Certificate have been converted, without interest, (iii) any additional cash, without interest, to be paid in lieu of any fractional share of Company Common Stock in accordance with Section 1.8(b) and (IIiv) a proportionate share of the Cash Additional Merger Consideration, and the Company Certificate so surrendered shall be cancelled. if any.
(e) If certificates representing shares of Parent Common Stock are to be registered in the name of a Person, any cash in lieu of fractional shares is to be paid to, or the Cash Merger Consideration is Acquisition Co. Certificates are to be paid to issued to, a Person person other than the Person person in whose name the surrendered Company Certificate surrendered in exchange therefor is registered, it shall be a condition to of the payment or issuance of such certificates representing shares of Parent Common Stock thereof that the Company Certificate so surrendered shall be properly endorsed or shall be and otherwise in proper form for transfer and that the Person person requesting such payment exchange shall have paid pay to the Exchange Agent any transfer and or other Taxes required by reason of the payment of cash to a person other than, or of the issuance of certificates representing shares of Parent Common Stock to a Person Acquisition Co. Certificates in any name other than that of, the registered holder of the Company Certificate surrendered surrendered, or otherwise required, or shall have established establish to the satisfaction of the Parent Exchange Agent that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificatepayable.
(c) At the close of business on the day during which the Effective Time occurs, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(ef) All shares of Parent Acquisition Co. Common Stock issued and all cash paid upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including Section 1.9, and any cash paid pursuant to Section 3.3(d) or 3.41.8(b) shall be deemed to have been issued (and paid paid) in full satisfaction of all rights pertaining to the Shares formerly shares of Company Common Stock theretofore represented by such Company Certificates, subjectexcept the right to a proportionate share of the Additional Merger Consideration, howeverwhich rights shall continue to exist until they expire or are satisfied by the delivery of the Additional Merger Consideration, to as provided in Section 1.9 (j) below. At the obligation Effective Time, the stock transfer books of Company shall be closed, and at the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date Corporation of the shares of Company’s Common Stock which were outstanding immediately prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for certificates representing the Acquisition Co. Common Stock and the cash into which they were converted as provided in herein.
(g) Any portion of the cash, Acquisition Co. Common Stock or Additional Merger Consideration delivered to the Exchange Agent pursuant to Section 1.9(b) which remains undistributed for eighteen months after the Effective Time shall be delivered to Acquisition Co., upon demand, and any holders of Company Common Stock who have not theretofore complied with Section 1.9 and the instructions set forth in the letter of transmittal mailed to such holders after the Effective Time shall thereafter look only to Acquisition Co. (subject to abandoned property, escheat or other similar laws) for payment of the shares of Acquisition Co. Common Stock, the cash, or any additional cash in lieu of fractional shares of Acquisition Co. Common Stock to which they are entitled.
(h) None of Acquisition Co., the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled liable to any person in respect of any cash or Acquisition Co. Common Stock delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(i) If any Company Certificate shall have been lost, stolen or destroyed, upon making of an affidavit of that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and exchanged the posting of a bond to the satisfaction of Acquisition Co. and the Exchange Agent, Exchange Agent will issue for such lost, stolen or destroyed Company Certificate the portion of the Merger Consideration payable in respect thereof, pursuant to this Agreement.
(j) On the Closing Date, Acquisition Co. shall issue a global security representing all Contingent Share Rights to be held by the Exchange Agent for the benefit of all holders of Company Common Stock and Company Options. Acquisition Co. shall deliver the security representing the Contingent Share Rights to the Exchange Agent and shall also deliver as provided soon as reasonably practicable a list in such form as the Exchange Agent shall reasonably require, stating the names and addresses of all record, and, to the extent ascertainable, beneficial owners of Contingent Share Rights, and the Exchange Agent shall prepare and transmit to the beneficial owners, together with such other documents as are appropriate in the judgment of the Exchange Agent to effect the surrender of certificates theretofore representing Company Common Stock a notice indicating the beneficial interest in the Contingent Share Rights held by each beneficial owner.
(k) Prior to the Effective Time, Company shall appoint X. Xxxxx & Co., Inc as representative (the “Stockholders’ Representative”) to enforce the rights of such holders in respect of the Contingent Share Rights and payment of any Additional Merger Consideration. Each Contingent Share Right will entitle the beneficial owner to receive that number of shares of Additional Merger Consideration, if any, to which such holder is entitled pursuant to Section 1.3(b) of this Article Agreement.
(l) Within ten (10) days of the end of the Measurement Period, Acquisition Co. will deliver to the Exchange Agent and the Stockholders’ Representative (A) an officer’s certificate of Acquisition Co. certifying (x) the highest closing sale price of Acquisition Co. Common Stock over any twenty (20) consecutive trading day period during the Measurement Period, and (y) Acquisition Co.’s calculation of the Additional Merger Consideration payable to each beneficial holder of Contingent Share Rights; (B) a certificate representing a sufficient number of shares of Acquisition Co. Common Stock to pay all Additional Merger Consideration payable to beneficial holders of Contingent Share Rights under this Agreement, and (C) such cash as is necessary to satisfy amounts due the holders of Company Options cancelled pursuant to Section 1.4 of this Agreement.
(m) If the Stockholders’ Representative disagrees with Acquisition Co.’s calculation of the Additional Merger Consideration payable, it shall send a written notice stating the basis for such disagreement within five (5) days of receiving the notice from Acquisition Co. contemplated by Section 1.3(l) above and Acquisition Co. and the Stockholders’ Representative shall either resolve the disagreement within three (3) days of the notice or submit the calculation of Additional Merger Consideration to an independent certified public accounting firm of nationally recognized standing mutually agreeable to Acquisition Co. and the Stockholders’ Representative, except which shall determine the Additional Merger Consideration payable within 30 days. Acquisition Co. shall pay the reasonable fees and expenses of the independent certified public accounting firm.
(n) At such time that Stockholders’ Representative and Acquisition Co. agree on, or the independent certified public accounting firm determines, the calculation of the Additional Merger Consideration payable, the parties will deliver written notice to the Exchange Agent along with any shares or cash representing the Additional Merger Consideration payable but not previously deposited pursuant to Section 1.9(l), and the Exchange Agent will distribute such shares of Acquisition Co. Common Stock as otherwise provided by Laware payable to beneficial holders of Contingent Share Rights in satisfaction of Acquisition Co.’s obligation to pay Additional Merger Consideration pursuant to Section 1.3(b) hereof.
(o) If the closing sales price of Acquisition Co.’s Common Stock equals or exceeds the Target Price during any twenty (20) consecutive trading day period during the Measurement Period, and Acquisition Co. is therefore not required to issue any Additional Merger Consideration, the Contingent Share Rights will be void.
Appears in 1 contract
Exchange of Company Certificates. (a) As soon Acquisition Co. shall authorize Continental Stock Transfer & Trust Company (or such other person or persons as practicable, shall be acceptable to Acquisition Co. and Company) as exchange agent (the Parent shall designate the “Exchange Agent to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger ConsiderationAgent”), to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after the Effective Time, the Parent shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1.
(b) As soon as reasonably practicable after the Effective Time, the Parent shall cause the Exchange Agent to mail send to each holder of record shares of one or more Company Certificates, (i) a Common Stock which shall have been converted into Acquisition Co. Common Stock an appropriate letter of transmittal for purposes of surrendering such holder's certificates for such shares for exchange pursuant hereto (which shall specify that delivery shall be effected, and risk of loss and title to a certificate which immediately prior to the Effective Time shall have represented any shares of Company Certificates Common Stock converted in the Merger (a “Company Certificate”) shall pass, only upon receipt delivery of the such Company Certificates by Certificate to the Exchange Agent and shall be in such a form and have such other provisions not inconsistent with this Agreement as the Parent Acquisition Co. may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for the property described in this Section 1.9.
(b) As soon as practicable after the Effective Time, Acquisition Co. shall deposit with the Exchange Agent, in trust for the holders of Company Certificates and Company Options: (i) an amount of cash sufficient to pay all amounts of Merger Consideration payable under this Agreement, including such cash required in accordance with Section 1.8(b), (ii) certificates representing a sufficient number of shares of Parent Acquisition Co. Common Stock together with (each, an “Acquisition Co. Certificate”) to effect the conversion of Company Common Stock into Acquisition Co. Common Stock, and (iii) a global security representing all of the Contingent Share Rights. The Exchange Agent shall invest any dividends cash deposited by Acquisition Co. hereunder as directed by Surviving Corporation, on a daily basis. Any interest and other distributions with respect thereto, any cash in lieu of fractional shares and the Cash Merger Consideration. income resulting from such investments shall be paid to Acquisition Co.
(c) Upon surrender of a Company Certificate for cancellation to the Exchange AgentAgent of all Company Certificate(s) held by any holder of record of a Company Certificate, together with such letter of transmittaltransmittal duly executed, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (xi) a certificate an Acquisition Co. Certificate representing that the number of whole shares of Parent Acquisition Co. Common Stock into which the shares of Company Common Stock represented by the surrendered Company Certificate(s) shall have been converted at the Effective Time pursuant to Section 1.8(a), (ii) cash representing the amount into which the shares of Company Common Stock represented by the surrendered Company Certificate(s) shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Lawhave been converted at the Effective Time pursuant to 1.8(a), without interest, (iii) and payment of cash in lieu of any fractional shares which such holder has share of Acquisition Co. Common Stock in accordance with Section 1.8(b), and (iv) a proportionate share of the right Additional Merger Consideration, if any. The Company Certificate(s) so surrendered shall forthwith be cancelled. Acquisition Co. or the Exchange Agent shall be entitled to receive deduct and withhold from the consideration otherwise payable pursuant to this Article 3 and (y) cash in an amount equal Agreement to the product of (I) the number any holder of shares of Company Common Stock formerly such amounts as Acquisition Co. or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under the Code or under any provision of state, local or foreign Tax (as defined in Section 2.14 hereof) law. To the extent that amounts are so withheld by Acquisition Co. or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Acquisition Co. or the Exchange Agent.
(d) Until surrendered as contemplated by Section 1.9(c), each Company Certificate, other than in respect of the Dissenting Shares, shall be deemed at any time after the Effective Time to represent only the right to receive (i) certificates representing the shares of Acquisition Co. Common Stock into which the shares of Company Common Stock represented by such Company Certificate have been converted, (ii) cash representing the amount into which the shares of Company Stock represented by such Company Certificate have been converted, without interest, (iii) any additional cash, without interest, to be paid in lieu of any fractional share of Company Common Stock in accordance with Section 1.8(b) and (IIiv) a proportionate share of the Cash Additional Merger Consideration, and the Company Certificate so surrendered shall be cancelled. if any.
(e) If certificates representing shares of Parent Common Stock are to be registered in the name of a Person, any cash in lieu of fractional shares is to be paid to, or the Cash Merger Consideration is Acquisition Co. Certificates are to be paid to issued to, a Person person other than the Person person in whose name the surrendered Company Certificate surrendered in exchange therefor is registered, it shall be a condition to of the payment or issuance of such certificates representing shares of Parent Common Stock thereof that the Company Certificate so surrendered shall be properly endorsed or shall be and otherwise in proper form for transfer and that the Person person requesting such payment exchange shall have paid pay to the Exchange Agent any transfer and or other Taxes required by reason of the payment of cash to a person other than, or of the issuance of certificates representing shares of Parent Common Stock to a Person Acquisition Co. Certificates in any name other than that of, the registered holder of the Company Certificate surrendered surrendered, or otherwise required, or shall have established establish to the satisfaction of the Parent Exchange Agent that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificatepayable.
(c) At the close of business on the day during which the Effective Time occurs, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(ef) All shares of Parent Acquisition Co. Common Stock issued and all cash paid upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including Section 1.9, and any cash paid pursuant to Section 3.3(d) or 3.41.8(b) shall be deemed to have been issued (and paid paid) in full satisfaction of all rights pertaining to the Shares formerly shares of Company Common Stock theretofore represented by such Company Certificates, subjectexcept the right to a proportionate share of the Additional Merger Consideration, howeverwhich rights shall continue to exist until they expire or are satisfied by the delivery of the Additional Merger Consideration, to as provided in Section 1.9 (j) below. At the obligation Effective Time, the stock transfer books of Company shall be closed, and at the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date Corporation of the shares of Company's Common Stock which were outstanding immediately prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for certificates representing the Acquisition Co. Common Stock and the cash into which they were converted as provided in herein.
(g) Any portion of the cash, Acquisition Co. Common Stock or Additional Merger Consideration delivered to the Exchange Agent pursuant to Section 1.9(b) which remains undistributed for eighteen months after the Effective Time shall be delivered to Acquisition Co., upon demand, and any holders of Company Common Stock who have not theretofore complied with Section 1.9 and the instructions set forth in the letter of transmittal mailed to such holders after the Effective Time shall thereafter look only to Acquisition Co. (subject to abandoned property, escheat or other similar laws) for payment of the shares of Acquisition Co. Common Stock, the cash, or any additional cash in lieu of fractional shares of Acquisition Co. Common Stock to which they are entitled.
(h) None of Acquisition Co., the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled liable to any person in respect of any cash or Acquisition Co. Common Stock delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(i) If any Company Certificate shall have been lost, stolen or destroyed, upon making of an affidavit of that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and exchanged the posting of a bond to the satisfaction of Acquisition Co. and the Exchange Agent, Exchange Agent will issue for such lost, stolen or destroyed Company Certificate the portion of the Merger Consideration payable in respect thereof, pursuant to this Agreement.
(j) On the Closing Date, Acquisition Co. shall issue a global security representing all Contingent Share Rights to be held by the Exchange Agent for the benefit of all holders of Company Common Stock and Company Options. Acquisition Co. shall deliver the security representing the Contingent Share Rights to the Exchange Agent and shall also deliver as provided soon as reasonably practicable a list in such form as the Exchange Agent shall reasonably require, stating the names and addresses of all record, and, to the extent ascertainable, beneficial owners of Contingent Share Rights, and the Exchange Agent shall prepare and transmit to the beneficial owners, together with such other documents as are appropriate in the judgment of the Exchange Agent to effect the surrender of certificates theretofore representing Company Common Stock a notice indicating the beneficial interest in the Contingent Share Rights held by each beneficial owner.
(k) Prior to the Effective Time, Company shall appoint X. Xxxxx & Co., Inc as representative (the “Stockholders’ Representative”) to enforce the rights of such holders in respect of the Contingent Share Rights and payment of any Additional Merger Consideration. Each Contingent Share Right will entitle the beneficial owner to receive that number of shares of Additional Merger Consideration, if any, to which such holder is entitled pursuant to Section 1.3(b) of this Article Agreement.
(l) Within ten (10) days of the end of the Measurement Period, Acquisition Co. will deliver to the Exchange Agent and the Stockholders’ Representative (A) an officer’s certificate of Acquisition Co. certifying (x) the highest closing sale price of Acquisition Co. Common Stock over any twenty (20) consecutive trading day period during the Measurement Period, and (y) Acquisition Co.’s calculation of the Additional Merger Consideration payable to each beneficial holder of Contingent Share Rights; (B) a certificate representing a sufficient number of shares of Acquisition Co. Common Stock to pay all Additional Merger Consideration payable to beneficial holders of Contingent Share Rights under this Agreement, and (C) such cash as is necessary to satisfy amounts due the holders of Company Options cancelled pursuant to Section 1.4 of this Agreement.
(m) If the Stockholders’ Representative disagrees with Acquisition Co.’s calculation of the Additional Merger Consideration payable, it shall send a written notice stating the basis for such disagreement within five (5) days of receiving the notice from Acquisition Co. contemplated by Section 1.3(l) above and Acquisition Co. and the Stockholders’ Representative shall either resolve the disagreement within three (3) days of the notice or submit the calculation of Additional Merger Consideration to an independent certified public accounting firm of nationally recognized standing mutually agreeable to Acquisition Co. and the Stockholders’ Representative, except which shall determine the Additional Merger Consideration payable within 30 days. Acquisition Co. shall pay the reasonable fees and expenses of the independent certified public accounting firm.
(n) At such time that Stockholders’ Representative and Acquisition Co. agree on, or the independent certified public accounting firm determines, the calculation of the Additional Merger Consideration payable, the parties will deliver written notice to the Exchange Agent along with any shares or cash representing the Additional Merger Consideration payable but not previously deposited pursuant to Section 1.9(l), and the Exchange Agent will distribute such shares of Acquisition Co. Common Stock as otherwise provided by Laware payable to beneficial holders of Contingent Share Rights in satisfaction of Acquisition Co.’s obligation to pay Additional Merger Consideration pursuant to Section 1.3(b) hereof.
(o) If the closing sales price of Acquisition Co.’s Common Stock equals or exceeds the Target Price during any twenty (20) consecutive trading day period during the Measurement Period, and Acquisition Co. is therefore not required to issue any Additional Merger Consideration, the Contingent Share Rights will be void.
Appears in 1 contract
Samples: Merger Agreement (Mossimo Inc)
Exchange of Company Certificates. (a) As soon as practicable, the Parent shall designate a bank or trust company reasonably acceptable to the Exchange Agent Company to act as agent for the holders of the Shares in connection with the Merger and to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3SECTION 3.1(c) (the "EXCHANGE AGENT"). From time At or prior to time after the Effective Time, the Parent or Purchaser shall deposit, or cause to be deposited, with the Exchange Agent for the benefit of holders of Shares Shares, Company Stock Options and Warrants, the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1SECTION 3.1(c). Such funds shall be invested as directed by Parent or the Surviving Corporation pending payment thereof by the Exchange Agent to holders of the Shares 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, (iii) commercial paper rated the highest quality by either Xxxxx'x Investors Services, Inc. or Standard & Poor's Corporation, or (iv) certificates of deposit, bank repurchase agreements or bankers' acceptances of commercial banks with capital exceeding $500 million. Earnings from such investments shall be the sole and exclusive property of Purchaser or the Surviving Corporation, as applicable, and no part of such earnings shall accrue to the benefit of holders of Shares. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration out of such aggregate consideration.
(b) As soon as reasonably practicable after the Effective Time, the but in any event no later than three (3) Business Days thereafter, Parent shall cause the Exchange Agent to mail to each holder of record of one or more Company Certificates, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt delivery of the Company Certificates by to the Exchange Agent and shall be in such customary form and have contain such other customary provisions not inconsistent with this Agreement as the Company and the Parent may reasonably specify) agree on and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for certificates representing shares payment of Parent Common Stock together with any dividends and other distributions with respect thereto, any cash in lieu of fractional shares and the Cash Merger Consideration. Upon surrender of a Company Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required requested by the Exchange Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock Merger Consideration for each Share formerly represented by such Company Certificate and (II) the Cash Merger Consideration, and the Company Certificate so surrendered shall be cancelled. If certificates representing shares payment of Parent Common Stock are to be registered in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition to the issuance of such certificates representing shares of Parent Common Stock payment that the Company Certificate so surrendered shall be properly endorsed indorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other non-income Taxes required by reason of the issuance payment of certificates representing shares of Parent Common Stock the Merger Consideration to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent Surviving Corporation that such Tax either has been paid or is not applicable. No interest shall be paid or shall accrue on the cash payable upon the surrender of any Company Certificate.
(c) All cash paid upon surrender of the Company Certificates in accordance with this ARTICLE III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates. At the close of business on the day during which the Effective Time occursTime, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock the Shares on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reasonreason except notation thereon that a shareholder of the Company has elected to exercise its right to appraisal pursuant to the MGBCL, they then such Company Certificates shall be canceled cancelled and exchanged as provided in this Article 3ARTICLE III.
(d) At any time following the first anniversary of the Effective Time, except the Surviving Corporation shall be entitled to require the Exchange Agent to deliver to it any funds (including any earnings with respect thereto) which had been made available to the Exchange Agent and which have not been disbursed to holders of Company Certificates, and thereafter such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) and only as otherwise provided general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Company Certificates, without any interest thereon. Notwithstanding the foregoing, neither Parent, the Surviving Corporation nor the Exchange Agent shall be liable to any holder of a Company Certificate for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by Lawthe Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond in such amount as Parent may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will pay in exchange for such lost, stolen or destroyed Certificate the Merger Consideration (or the Company shall use its reasonable efforts to make such other arrangements as are necessary to ensure that such Person claiming such Certificate to be lost, stolen or destroyed and posting such indemnity bond shall receive the Offer Price in respect of the Shares represented by such Certificate).
Appears in 1 contract
Exchange of Company Certificates. (a) As soon as practicable, the Parent shall designate the Exchange Agent to act as agent for the holders of Shares to receive in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after At the Effective Time, the Parent shall deposit, deposit or cause to be deposited, with a bank or trust company selected by Parent and reasonably acceptable to the Exchange Agent Company (the “Paying Agent”) for exchange and payment in accordance with this Article III, an amount in cash sufficient to deliver the aggregate Merger Consideration in exchange for the benefit of holders of Shares Company Certificates (the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1“Fund”).
(b) As soon as reasonably practicable after No later than five (5) Business Days following the Effective Time, the Parent Surviving Corporation shall cause the Exchange Paying Agent to mail to each holder of record of one Company Certificates (other than Company Certificates representing Dissenting Shares) that has not previously surrendered his, her or more its Company Certificates, Certificates (i) a letter of transmittal in customary form (which the “Letter of Transmittal”), that shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt proper delivery of the Company Certificates by to the Exchange Paying Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for certificates representing shares the Merger Consideration (which instructions shall provide that at the election of Parent Common Stock together with any dividends and other distributions with respect theretothe surrendering holder, any cash in lieu of fractional shares Company Certificates may be surrendered, and the Cash Merger ConsiderationConsideration in exchange therefor collected, by hand delivery). Upon surrender of a Company Certificate for cancellation to the Exchange Paying Agent, together with such letter a Letter of transmittal, duly Transmittal properly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Paying Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (the Merger Consideration into which shall be credited in street name through Depository Trust the Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company Common Stock formerly Shares previously represented by such Company Certificate shall have been converted pursuant to Section 3.1 and (II) the Cash Merger Consideration, and the any Company Certificate so surrendered shall be forthwith cancelled. If certificates representing shares of Parent Common Stock are to be registered in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered The Paying Agent shall promptly accept such Company Certificate is registered, it shall be a condition upon compliance with such reasonable terms and conditions as the Paying Agent may impose to the issuance of such certificates representing shares of Parent Common Stock that the Company Certificate so surrendered shall be properly endorsed or shall be otherwise effect an orderly exchange thereof in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent that such Tax either has been paid or is not applicableaccordance with customary exchange practices. No interest shall be paid or shall accrue on the cash Merger Consideration payable upon the surrender of any Company CertificateCertificate for the benefit of, or be paid to, the holders of Company Certificates.
(c) At the close of business on the day during which the Effective Time occurs, the stock transfer books of the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash All Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent Common Stock issued delivered upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d) or 3.4) III shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Company Shares formerly theretofore represented by such Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made . Until surrendered as contemplated by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3, except as otherwise provided by Law.this
Appears in 1 contract
Samples: Merger Agreement (TBC Corp)
Exchange of Company Certificates. (a) As soon as practicablePrior to the Closing Date, the Parent Purchaser shall designate a bank, trust company or transfer agent located in the United Kingdom reasonably acceptable to the Company (the “Exchange Agent Agent”) to act as agent for the holders of Shares to receive the Company Capital Stock in trust the shares of Parent Common Stock, funds to be paid for fractional shares and funds to pay the Cash Merger Consideration, to which holders of the Shares shall become entitled pursuant to this Article 3. From time to time after the Effective Time, the Parent shall deposit, or cause to be deposited, connection with the Exchange Agent for the benefit of holders of Shares the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Section 3.1Share Exchange.
(b) As soon as reasonably practicable Promptly after the Effective TimeClosing Date, the Parent Purchaser, and/or its duly appointed Exchange Agent, shall cause the Exchange Agent to mail be mailed to each holder shareholder of record the Company that has accepted the Offer, as of one or more Company Certificatesthe Closing Date, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon receipt of the Company Certificates by the Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as the Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of Company Certificates in exchange for the certificates representing shares of Parent Company Capital Stock (the “Company Certificates”) in exchange for ICE Common Stock together with any dividends and other distributions with respect thereto, any cash in lieu of fractional shares and the Cash Merger ConsiderationStock. Upon surrender of a Company Certificate for cancellation to the Exchange AgentAgent or to such other agent or agents reasonably acceptable to the Company as may be appointed by the Purchaser, together with such letter of transmittal, properly completed and duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agent, the holder of such Company Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock (which shall be credited in street name through Depository Trust Company if delivered in street name unless a physical certificate is specifically requested or is otherwise required by the applicable Law) and payment of cash in lieu of fractional shares which such holder has the right to receive pursuant to this Article 3 and (y) cash in an amount equal to the product of (I) the number of shares of Company ICE Common Stock formerly (based on the conversion ratio set forth in Section 2.1(a)) for each share of Company Capital Stock represented by such Company Certificate and (II) the Cash Merger ConsiderationCertificate, and the shares of Company Capital Stock represented by such Company Certificate so surrendered shall be cancelledtransferred to the Purchaser. The Purchaser reserves the right for certain U.S. federal income tax purposes, subject to the Company’s consent, to make a cash payment to any tendering Company shareholder in lieu of ICE Common Stock for any part of the Company Capital Stock tendered, but such cash consideration shall not exceed $5,000 dollars in total. This cash consideration may or may not be provided pro rata to exchanging Company shareholders, as determined by the parties for administrative convenience. If certificates representing the shares of Parent ICE Common Stock are to be registered issued in the name of a Person, cash in lieu of fractional shares is to be paid or the Cash Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Company Certificate is registered, it shall be a condition of issuance that instructions to that effect shall be delivered to the issuance of such certificates representing shares of Parent Common Stock that Exchange Agent with the Company Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment issuance shall have paid any all transfer and other Taxes required by reason of the issuance of certificates representing shares of Parent Common Stock to a Person other than the registered holder of the Company Certificate surrendered or shall have established to the satisfaction of the Parent Purchaser that such Tax either has been paid or is not applicable. No interest Until surrendered as contemplated by this Section 2.4(b), each Company Certificate held by a shareholder of the Company that has accepted the Offer shall be paid or shall accrue deemed after the Closing Date to represent only the right to receive the shares of ICE Common Stock (based on the cash payable upon the surrender conversion ratio set forth in Section 2.1(a)) for each share of any Company CertificateCapital Stock as contemplated by this Section 2.4(b).
(c) At In the close event any Company Certificates shall have been lost, stolen or destroyed, then upon the making of business on an affidavit of that fact by the day during which Person claiming such Company Certificate(s) to be lost, stolen or destroyed and, if required by the Effective Time occursPurchaser, the stock transfer books posting by such Person of a bond in such sum as the Company shall Purchaser may reasonably direct as indemnity against any claim that may be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock on the records of the Company.
(d) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate with respect to the shares of Parent Common Stock represented thereby, no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4 and no Cash Merger Consideration shall be paid to any such holder, until the surrender of such Company Certificate in accordance with this Article 3. Subject to the effect of applicable escheat or similar laws, following surrender of any such Company Certificate, there shall be paid to the holder thereof, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of Parent Common Stock to which such holder is entitled pursuant to Section 3.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid made against it with respect to such shares of Parent Common Stock, (ii) the Cash Merger Consideration, and (iii) at the appropriate payment dateCompany Certificate(s), the amount of dividends or other distributions with a record date after Exchange Agent will issue the Effective Time and a payment date subsequent to such surrender payable with respect to such shares of Parent Common Stock.
(e) All shares of Parent ICE Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this Article 3 (including any cash paid pursuant to Section 3.3(d2.4(b) or 3.4) shall be deemed to have been issued and paid deliverable in full satisfaction respect of all rights pertaining to the Shares formerly shares of Company Capital Stock represented by such lost, stolen or destroyed Company Certificates, subject, however, to the obligation of the Surviving Corporation, if any, to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 3, except as otherwise provided by Law.
Appears in 1 contract
