Common use of Exchange of Company Common Shares Clause in Contracts

Exchange of Company Common Shares. (a) At the Effective Time, Parent shall provide or shall cause to be provided to the transfer agent for the Company Common Shares or another nationally recognized financial institution designated by Parent and reasonably acceptable to the Company (the “Paying Agent”) all of the cash necessary to pay the aggregate Merger Consideration to be paid pursuant to Section 2.1 (such cash provided to the Paying Agent, being hereinafter referred to as the “Payment Fund”). The Paying Agent shall promptly deliver the cash contemplated to be paid pursuant to Section 2.1 out of the Payment Fund to each holder of Company Common Shares who has surrendered its certificates in respect of the Company Common Shares, if applicable, and delivered a properly completed and duly executed Letter of Transmittal, if applicable; provided that no such delivery shall be required in respect of a holder of Company Common Shares until at least the third (3rd) Business Day following surrender of such certificates and delivery of such Letter of Transmittal by such a holder, in each case, if required pursuant to Section 2.2. The Payment Fund shall not be used for any other purpose. In the event the Payment Fund shall be insufficient to pay the portion of the Merger Consideration that remains payable (including as a result of any losses resulting from the investments contemplated in Section 2.2(g)), Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to the deficiency. (b) Parent shall instruct the Paying Agent to mail, as soon as reasonably practicable after the Effective Time, to each holder of record of a Certificate whose Company Common Shares were converted into the right to receive the Merger Consideration pursuant to Section 2.1(c), (i) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to any Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent and shall be in such form and have such other provisions as Parent may reasonably specify (the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration and matters relating thereto. Upon surrender of a Certificate to the Paying Agent, together with the Letter of Transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor the amount of cash which the aggregate number of Company Common Shares previously represented by such Certificate shall have been converted pursuant to Section 2.1(c), and the Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Company Common Shares that is not registered in the transfer records of the Company, payment may be made to a Person other than the Person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of Parent that such Tax has been paid or is not applicable. Subject to Section 2.1(e), until surrendered as contemplated by this Section 2.2(b), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration into which the Company Common Shares theretofore represented by such Certificate have been converted pursuant to Section 2.1(c). No interest shall be paid or accrue on any cash payable upon surrender of any Certificate. Notwithstanding anything herein to the contrary, no holder of Book-Entry Shares shall be required to deliver a Certificate or any letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled to receive pursuant hereto. In lieu thereof, each registered holder of one or more Book-Entry Shares shall automatically upon receipt by the Paying Agent of any customary transmission or materials required by the Paying Agent, be entitled to receive the Merger Consideration that such holder is entitled to receive pursuant hereto. Payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. (c) The Merger Consideration paid in accordance with the terms of this ARTICLE II upon conversion of any Company Common Shares shall be deemed to have been paid in full satisfaction of all rights pertaining to such Company Common Shares. After the Effective Time there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of Company Common Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificates formerly representing Company Common Shares are presented to the Surviving Corporation, Parent or the Paying Agent for any reason, they shall be cancelled and exchanged as provided in this ARTICLE II. For the avoidance of doubt, this Section 2.2(c) does not affect the right of holders of record of issued and outstanding Company Common Shares immediately prior to the Effective Time to receive, in connection with the consummation of the Merger and as consideration in connection therewith, the Special Dividend pursuant to the terms of Section 5.20. (d) Any portion of the Payment Fund that remains undistributed to the holders of Company Common Stock for twelve (12) months after the Effective Time shall be delivered to the Surviving Corporation (or, at the option of Parent, delivered to Parent) free and clear of any claim or interest of any Person previously entitled thereto other than that holders of Company Common Shares that have not theretofore complied with this ARTICLE II shall thereafter look only to the Surviving Corporation or Parent, as applicable, therefor for payment of its claim for the Merger Consideration. (e) None of Parent, Merger Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash from the Payment Fund (including any amounts delivered to Parent in accordance with Section 2.2(d)) delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. (f) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such reasonable and customary amount as Parent or the Paying Agent may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable pursuant to this ARTICLE II had such lost, stolen or destroyed Certificate been surrendered. (g) The Paying Agent shall invest any cash included in the Payment Fund, as directed by Parent, on a daily basis or hold as cash or in a savings deposit or similar account at the direction of Parent; provided, however, if any such investment is directed by Parent, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A 1 or P 1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available); provided, further, no monetary losses on such investment thereof shall affect the Merger Consideration payable hereunder and, following any such losses, Parent shall promptly provide additional funds to the Paying Agent, for the benefit of the holders of Company Common Shares, for exchange in accordance with this ARTICLE II, in the amount of such losses to the extent that the amount then in the Payment Fund is insufficient to pay the Merger Consideration that remains payable. Any interest and other income resulting from such investments shall be paid to Parent. (h) Notwithstanding anything in this Agreement to the contrary, Parent, the Surviving Corporation or the Paying Agent, as applicable, shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement, including the Special Dividend, such amounts as may be required to be deducted and withheld with respect to the making of such payment under the United States Internal Revenue Code of 1986 (the “Code”) or under any provision of U.S. state or local or non-U.S. Tax Law; provided, however, Parent shall, as soon as practicable prior to the Effective Time: (a) provide prompt notice to the Company upon determining any withholding is required and (b) cooperate with the Company to minimize the amount of any applicable deduction or withholding, including by providing reasonable opportunity to provide such documentation or take any other actions necessary to reduce or eliminate such deduction or withholding. To the extent that amounts are so withheld and paid over to the appropriate Governmental Entity, such amount deducted or withheld shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made, and, in the case of any amounts withheld from any payments not consisting entirely of cash, Parent shall be treated as though it withheld an appropriate amount of the type of consideration otherwise payable pursuant to this Agreement to any holder of Company Common Stock, sold such consideration for an amount of cash equal to the fair market value of such consideration at the time of such deemed sale and paid such cash proceeds to the Person in respect of which such deduction or withholding was made.

Exchange of Company Common Shares. (a) At After the Effective Time, Parent each Company Shareholder shall provide be entitled, upon surrender of a certificate or shall cause to be provided certificates which immediately prior to the transfer agent for the Effective Time represented outstanding Company Common Shares or another nationally recognized financial institution designated by Parent and reasonably acceptable to the Company (the “Paying Agent”) all of the cash necessary to pay the aggregate Merger Consideration to be paid pursuant to Section 2.1 (such cash provided to the Paying Agent"CERTIFICATES"), being hereinafter referred to as the “Payment Fund”). The Paying Agent shall promptly deliver the cash contemplated to be paid pursuant to Section 2.1 out of the Payment Fund to each holder of Company Common Shares who has surrendered its certificates in respect of the Company Common Shares, if applicable, along with a fully executed Subscription Agreement and delivered a properly completed and duly executed Letter of TransmittalInvestment Intent in the form of EXHIBIT B (the "SUBSCRIPTION DOCUMENTS"), if applicable; provided that no such delivery shall be required in respect of a holder of Company Common Shares until at least the third (3rd) Business Day following surrender of such certificates and delivery of such Letter of Transmittal by such a holder, in each case, if required pursuant to Section 2.2. The Payment Fund shall not be used for any other purpose. In the event the Payment Fund shall be insufficient to pay the portion of receive the Merger Consideration that remains payable (including from Buyer through such reasonable procedures as a result of any losses resulting from the investments contemplated in Section 2.2(g)), Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to the deficiencyBuyer may adopt. (b) Parent At the Closing, each Company Shareholder shall instruct deposit with the Paying Escrow Agent to mail, (as soon as reasonably practicable after the Effective Time, to defined below) in accordance with Section 1.05 each holder of record of a Certificate whose for outstanding Company Common Shares were converted into Shares, together with the right to receive the Merger Consideration pursuant to Section 2.1(c), (i) Subscription Documents and a letter of transmittal, transmittal ("LETTER OF TRANSMITTAL") (which shall specify that delivery of the Certificates shall be effected, and risk of loss and title to any the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent Buyer, and shall also authorize and instruct Buyer to deliver to the Escrow Agent that number of Buyer Preferred Shares to which the holder thereof would otherwise be entitled pursuant to Section 1.03 for deposit into the Escrow Account pursuant to Section 1.05), duly completed and validly executed in such form and have such other provisions as Parent may reasonably specify (accordance with the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration and matters relating thereto. Upon surrender deposit of a the Certificate to with the Paying Escrow Agent, together with the Subscription Documents and the Letter of Transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agentexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor the amount a pro rata portion of cash which the aggregate number of Company Common Shares previously represented by such Certificate shall have been converted pursuant to Section 2.1(c), and the Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Company Common Shares that is not registered in the transfer records of the Company, payment may be made to a Person other than the Person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of Parent that such Tax has been paid or is not applicable. Subject to Section 2.1(e), until surrendered as contemplated by this Section 2.2(b), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration to be deposited with the Escrow Agent, including a certificate representing that number of Buyer Preferred Shares into which the Company Common Shares theretofore represented by such the Certificate have been converted pursuant to Section 2.1(c). No interest so surrendered shall be paid or accrue on any cash payable upon surrender of any Certificate. Notwithstanding anything herein to the contrary, no holder of Book-Entry Shares shall be required to deliver a Certificate or any letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled to receive pursuant hereto. In lieu thereof, each registered holder of one or more Book-Entry Shares shall automatically upon receipt converted by the Paying Agent of any customary transmission or materials required by the Paying Agent, be entitled to receive the Merger Consideration that such holder is entitled to receive pursuant hereto. Payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registeredMerger. (c) The All Merger Consideration paid issued upon the surrender for exchange of Company Common Shares in accordance with the above terms of this ARTICLE II upon conversion of any Company Common Shares and conditions shall be deemed to have been paid issued in full satisfaction of all rights pertaining to such Company Common Shares. . (d) In the event any Certificates shall have been lost, stolen or destroyed, Buyer shall deliver to the Escrow Agent to be held in escrow in accordance with Section 1.05 in exchange for such lost, stolen or destroyed Certificate, upon the making of an affidavit of that fact by the holder thereof, Buyer Preferred Shares; provided, however, that Buyer may, in its discretion and as a condition precedent to the issuance of any Buyer Preferred Shares, require the owner of such lost, stolen or destroyed Certificate to deliver a bond in such reasonable sum as it may direct as indemnity against any claim that may be made against Buyer, Merger Subsidiary, the Company, or any other party with respect to the Certificate alleged to have been lost, stolen or destroyed. (e) After the Effective Time Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of Company Common Shares that which were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificates formerly representing Company Common Shares such shares are presented to the Surviving Corporation, Parent or the Paying Agent for any reason, they shall be cancelled canceled and exchanged for Merger Consideration as provided in this ARTICLE II. For the avoidance of doubt, this Section 2.2(c) does not affect the right of holders of record of issued and outstanding Company Common Shares immediately prior to the Effective Time to receive, in connection with the consummation of the Merger and as consideration in connection therewith, the Special Dividend pursuant to the terms of Section 5.201.03. (d) Any portion of the Payment Fund that remains undistributed to the holders of Company Common Stock for twelve (12) months after the Effective Time shall be delivered to the Surviving Corporation (or, at the option of Parent, delivered to Parent) free and clear of any claim or interest of any Person previously entitled thereto other than that holders of Company Common Shares that have not theretofore complied with this ARTICLE II shall thereafter look only to the Surviving Corporation or Parent, as applicable, therefor for payment of its claim for the Merger Consideration. (e) None of Parent, Merger Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash from the Payment Fund (including any amounts delivered to Parent in accordance with Section 2.2(d)) delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. (f) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such reasonable and customary amount as Parent or the Paying Agent may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable pursuant to this ARTICLE II had such lost, stolen or destroyed Certificate been surrendered. (g) The Paying Agent shall invest any cash included in the Payment Fund, as directed by Parent, on a daily basis or hold as cash or in a savings deposit or similar account at the direction of Parent; provided, however, if any such investment is directed by Parent, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A 1 or P 1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available); provided, further, no monetary losses on such investment thereof shall affect the Merger Consideration payable hereunder and, following any such losses, Parent shall promptly provide additional funds to the Paying Agent, for the benefit of the holders of Company Common Shares, for exchange in accordance with this ARTICLE II, in the amount of such losses to the extent that the amount then in the Payment Fund is insufficient to pay the Merger Consideration that remains payable. Any interest and other income resulting from such investments shall be paid to Parent. (h) Notwithstanding anything in this Agreement to the contrary, Parent, the Surviving Corporation or the Paying Agent, as applicable, shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement, including the Special Dividend, such amounts as may be required to be deducted and withheld with respect to the making of such payment under the United States Internal Revenue Code of 1986 (the “Code”) or under any provision of U.S. state or local or non-U.S. Tax Law; provided, however, Parent shall, as soon as practicable prior to the Effective Time: (a) provide prompt notice to the Company upon determining any withholding is required and (b) cooperate with the Company to minimize the amount of any applicable deduction or withholding, including by providing reasonable opportunity to provide such documentation or take any other actions necessary to reduce or eliminate such deduction or withholding. To the extent that amounts are so withheld and paid over to the appropriate Governmental Entity, such amount deducted or withheld shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made, and, in the case of any amounts withheld from any payments not consisting entirely of cash, Parent shall be treated as though it withheld an appropriate amount of the type of consideration otherwise payable pursuant to this Agreement to any holder of Company Common Stock, sold such consideration for an amount of cash equal to the fair market value of such consideration at the time of such deemed sale and paid such cash proceeds to the Person in respect of which such deduction or withholding was made.

Exchange of Company Common Shares. (a) At After the Effective Time, Parent each Company Shareholder shall provide or shall cause to be provided entitled, upon surrender of a certificate which immediately prior to the transfer agent for the Effective Time represented outstanding Company Common Shares or another nationally recognized financial institution designated by Parent and reasonably acceptable (collectively, the "Certificates"), along with the letter of transmittal described in SECTION 1.4(B), to the Company (the “Paying Agent”) all of the cash necessary to pay the aggregate Merger Consideration to be paid pursuant to Section 2.1 (such cash provided to the Paying Agent, being hereinafter referred to as the “Payment Fund”). The Paying Agent shall promptly deliver the cash contemplated to be paid pursuant to Section 2.1 out of the Payment Fund to each holder of Company Common Shares who has surrendered its certificates in respect of the Company Common Shares, if applicable, and delivered a properly completed and duly executed Letter of Transmittal, if applicable; provided that no such delivery shall be required in respect of a holder of Company Common Shares until at least the third (3rd) Business Day following surrender of such certificates and delivery of such Letter of Transmittal by such a holder, in each case, if required pursuant to Section 2.2. The Payment Fund shall not be used for any other purpose. In the event the Payment Fund shall be insufficient to pay the portion of receive the Merger Consideration that remains payable from Buyer through such reasonable procedures as Buyer may adopt (including as a result of any losses resulting from the investments contemplated but not limited to those set forth in Section 2.2(gthis Agreement)), Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to the deficiency. (b) Parent shall instruct the Paying Agent to mail, as As soon as reasonably practicable after the Effective Time, Buyer shall deliver to each holder of record of a Certificate whose Company Common Shares were converted into the right to receive the Merger Consideration pursuant to Section 2.1(c), Shareholder (i) a letter of transmittal, which shall transmittal in customary form and containing such provisions as Buyer may reasonably specify (including a provision confirming that delivery of the Certificates shall be effected, and risk of loss and title to any the Certificates shall pass, only upon proper delivery of the such Certificates to the Paying Agent and shall be in such form and have such other provisions as Parent may reasonably specify (the “Letter of Transmittal”) Buyer), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration and matters relating theretoConsideration. Promptly after the Effective Time, each Company Shareholder shall surrender to Buyer each Certificate which immediately prior to the Effective Time represented outstanding Company Common Shares together with a letter of transmittal. Upon surrender by a Company Shareholder of a the Certificate for cancellation to the Paying AgentBuyer, together with the Letter letter of Transmittaltransmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agentexecuted, the holder of such Certificate Company Shareholders shall be entitled to receive in exchange therefor the amount of cash which the aggregate number of Company Common Shares previously represented by such Certificate shall have been converted pursuant to Section 2.1(c), and the Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Company Common Shares that is not registered in the transfer records of the Company, payment may be made to a Person other than the Person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of Parent that such Tax has been paid or is not applicable. Subject to Section 2.1(e), until surrendered as contemplated by this Section 2.2(b), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration into which the Company Common Shares theretofore represented by such Certificate have been converted pursuant to Section 2.1(c)as described above. No interest shall accrue or be paid or accrue on any cash payable upon surrender of any Certificate. Notwithstanding anything herein to the contrary, no holder of Book-Entry Shares shall be required to deliver a Certificate or any letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled to receive pursuant hereto. In lieu thereof, each registered holder of one or more Book-Entry Shares shall automatically upon receipt by the Paying Agent of any customary transmission or materials required by the Paying Agent, be entitled to receive the Merger Consideration that such holder is entitled to receive pursuant hereto. Payment of the Merger Consideration with respect to Book-Entry Shares any Merger Consideration which any person shall only be made so entitled to receive, except as provided in the Person in whose name such Book-Entry Shares are registeredBuyer's Note. (c) The Merger Consideration paid in accordance with the terms of this ARTICLE II upon conversion of any Company Common Shares shall be deemed to have been paid in full satisfaction of all rights pertaining to such Company Common Shares. After the Effective Time there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of Company Common Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificates formerly representing Company Common Shares are presented to the Surviving Corporation, Parent or the Paying Agent for any reason, they shall be cancelled and exchanged as provided in this ARTICLE II. For the avoidance of doubt, this Section 2.2(c) does not affect the right of holders of record of issued and outstanding Company Common Shares immediately prior to the Effective Time to receive, in connection with the consummation of the Merger and as consideration in connection therewith, the Special Dividend pursuant to the terms of Section 5.20. (d) Any portion of the Payment Fund that remains undistributed to the holders of Company Common Stock for twelve (12) months after the Effective Time shall be delivered to the Surviving Corporation (or, at the option of Parent, delivered to Parent) free and clear of any claim or interest of any Person previously entitled thereto other than that holders of Company Common Shares that have not theretofore complied with this ARTICLE II shall thereafter look only to the Surviving Corporation or Parent, as applicable, therefor for payment of its claim for the Merger Consideration. (e) None of Parent, Merger Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash from the Payment Fund (including any amounts delivered to Parent in accordance with Section 2.2(d)) delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. (f) In the event any Certificate Certificates shall have been lost, stolen or destroyed, Buyer shall deliver in exchange for such lost, stolen or destroyed Certificate, upon the making of an affidavit of that fact by the Person claiming holder thereof, the Merger Consideration, as may be required pursuant hereto; provided, however, that Buyer may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of Certificate to deliver a bond in such reasonable and customary amount sum as Parent or the Paying Agent it may reasonably direct as indemnity against any claim that may be made against it Buyer, Merger Subsidiary, the Company, or any other party with respect to such Certificate, the Paying Agent will issue in exchange for such Certificate alleged to have been lost, stolen or destroyed Certificate the Merger Consideration payable pursuant to this ARTICLE II had such lost, stolen or destroyed Certificate been surrendereddestroyed. (gd) The Paying Agent shall invest any cash included in the Payment Fund, as directed by Parent, on a daily basis or hold as cash or in a savings deposit or similar account at the direction of Parent; provided, however, if any such investment is directed by Parent, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A 1 or P 1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available); provided, further, no monetary losses on such investment thereof shall affect the Merger Consideration payable hereunder and, following any such losses, Parent shall promptly provide additional funds to the Paying Agent, for the benefit of the holders of Company Common Shares, for exchange in accordance with this ARTICLE II, in the amount of such losses to the extent that the amount then in the Payment Fund is insufficient to pay the Merger Consideration that remains payable. Any interest and other income resulting from such investments shall be paid to Parent. (h) Notwithstanding anything in this Agreement to the contrary, Parent, the Surviving Corporation or the Paying Agent, as applicable, shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement, including the Special Dividend, such amounts as may be required to be deducted and withheld with respect to the making of such payment under the United States Internal Revenue Code of 1986 (the “Code”) or under any provision of U.S. state or local or non-U.S. Tax Law; provided, however, Parent shall, as soon as practicable prior Prior to the Effective Time: (a) provide prompt notice , the Board of Directors of Buyer shall authorize and reserve for issuance a sufficient number of Buyer Common Shares for the purpose of issuing its shares to the Company upon determining any withholding is required and Shareholders in accordance herewith. (be) cooperate with Each share of the Company's stock held in the treasury of the Company to minimize the amount of any applicable deduction or withholding, including by providing reasonable opportunity to provide such documentation or take any other actions necessary to reduce or eliminate such deduction or withholding. To the extent that amounts are so withheld and paid over to the appropriate Governmental Entity, such amount deducted or withheld shall be treated for all purposes cancelled as of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made, and, in the case of any amounts withheld from any payments not consisting entirely of cash, Parent Effective Time and no Merger Consideration shall be treated as though it withheld an appropriate amount of the type of consideration otherwise payable pursuant to this Agreement to any holder of Company Common Stock, sold such consideration for an amount of cash equal to the fair market value of such consideration at the time of such deemed sale and paid such cash proceeds to the Person in with respect of which such deduction or withholding was madethereto.