Exchange of Company Common Stock. (i) As soon as reasonably practicable, Parent shall mail or cause to be delivered a letter of transmittal to holders of record of Company Common Stock instructing such holders to tender the certificates for Company Common Stock (the “Certificate” or “Certificates”) to Computershare (the “Exchange Agent”). Such letter of transmittal shall specify that risk of loss and title to Certificates shall pass only upon acceptance of such Certificates by the Exchange Agent. (ii) After the Effective Time, each holder of a Certificate that surrenders such Certificate to the Exchange Agent will, upon acceptance thereof by the Exchange Agent, be entitled to the Per Share Merger Consideration payable in respect of the shares represented thereby as determined under Section1.3(a). (iii) The Exchange Agent shall accept Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof and in accordance with customary exchange practices. Certificates shall be appropriately endorsed or accompanied by such instruments of transfer as the Exchange Agent may reasonably require. (iv) Each outstanding Certificate, other than those representing Perfected Dissenting Shares, shall until duly surrendered to the Exchange Agent be deemed to evidence the right to receive the Per Share Merger Consideration payable in respect of the shares represented thereby. (v) After the Effective Time, holders of Certificates shall cease to have rights with respect to the Company Common Stock previously represented by such Certificates, and their sole rights (other than the holders of Certificates representing Perfected Dissenting Shares) shall be to exchange such Certificates for the Per Share Merger Consideration. At the Effective Time, Company shall deliver a certified copy of a list of its shareholders to the Exchange Agent. After the Effective Time, there shall be no further transfer of Certificates on the records of Company, and if such Certificates are presented to Company for transfer, they shall be canceled against delivery of the Per Share Merger Consideration. Parent shall not be obligated to deliver any Per Share Merger Consideration to any holder of Company Common Stock until such holder surrenders the Certificates as provided herein. No dividends declared will be remitted, nor any voting rights granted, to any person entitled to receive Parent Common Stock under this Agreement until such person surrenders the Certificate representing the right to receive such Parent Common Stock, at which time such dividends on whole shares of Parent Common Stock with a record date on or after the Effective Time shall be remitted to such person, without interest and less any taxes that may have been imposed thereon, and voting rights will be restored. Certificates surrendered for exchange by any person constituting an “affiliate” of Company for purposes of Rule 144 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”) shall not be exchanged for certificates representing Parent Common Stock until Parent has received a written agreement from such person as specified in Section 6.2(e). Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof shall be liable to any holder of Company Common Stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Parent and the Exchange Agent shall be entitled to rely upon the stock transfer books of Company to establish the identity of those persons entitled to receive consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of stock represented by any Certificate, the Exchange Agent shall be entitled to deposit any consideration in respect thereof in escrow with an independent third party and thereafter be relieved with respect to any claims thereto. (vi) If any Per Share Merger Consideration is to be issued to a person other than a person in whose name a surrendered Certificate is registered, it shall be a condition of issuance that the surrendered Certificate shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such issuance shall pay to the Exchange Agent any required transfer or other taxes or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. (vii) In the event any Certificate shall have been lost, stolen or destroyed, the owner of such lost, stolen or destroyed Certificate shall deliver to the Exchange Agent an affidavit stating such fact, in form satisfactory to Parent, and, at Parent’s discretion, a bond in such reasonable sum as the Exchange Agent may direct as indemnity against any claim that may be made against Parent or Company or its successor or any other party with respect to the Certificate alleged to have been lost, stolen or destroyed. Upon such delivery, the owner shall have the right to receive the Per Share Merger Consideration with respect to the shares represented by the lost, stolen or destroyed Certificate.
Appears in 2 contracts
Samples: Reorganization Agreement and Plan of Merger (Service 1st Bancorp), Reorganization Agreement and Plan of Merger (Central Valley Community Bancorp)
Exchange of Company Common Stock. (a) Prior to the date hereof, the Company provided to each holder of record of a certificate or certificates, which immediately prior to the Effective Time represented outstanding shares of Company Common Stock (other than Dissenting Shares) (the "Certificates"), whose shares are to be converted into the right to receive Merger Consideration as set forth herein: (i) As soon as reasonably practicable, Parent shall mail or cause to be delivered a letter of transmittal (in the form and with such provisions as Parent agreed upon) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the applicable Merger Consideration.
(b) Each Certificate so surrendered shall be cancelled, and, with respect to holders each share represented thereby, the holder of record such Certificate shall be entitled to receive in exchange therefor the applicable Merger Consideration payable with respect to such share of Company Common Stock instructing formerly represented by such holders Certificate, to tender the certificates for Company Common Stock (the “Certificate” or “Certificates”) to Computershare (the “Exchange Agent”). Such letter of transmittal shall specify that risk of loss and title to Certificates shall pass only upon acceptance of such Certificates be distributed by the Exchange Agent.
(ii) After Parent as soon as practicable after the Effective Time, each holder of a Certificate that surrenders such Certificate to the Exchange Agent will, upon acceptance thereof by the Exchange Agent, be entitled to the Per Share Merger Consideration payable in respect of the shares represented thereby as determined under Section1.3(a).
(iii) The Exchange Agent shall accept Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof and in accordance with customary exchange practices. Certificates shall be appropriately endorsed or accompanied by such instruments of transfer as the Exchange Agent may reasonably require.
(iv) Each outstanding Certificate, other than those representing Perfected Dissenting Shares, shall until duly surrendered to the Exchange Agent be deemed to evidence the right to receive the Per Share Merger Consideration payable in respect of the shares represented thereby.
(v) After the Effective Time, holders of Certificates shall cease to have rights with respect to the Company Common Stock previously represented by such Certificates, and their sole rights (other than the holders of Certificates representing Perfected Dissenting Shares) shall be to exchange such Certificates for the Per Share Merger Consideration. At the Effective Time, Company shall deliver a certified copy of a list of its shareholders to the Exchange Agent. After the Effective Time, there shall be no further transfer of Certificates on the records of Company, and if such Certificates are presented to Company for transfer, they shall be canceled against delivery of the Per Share Merger Consideration. Parent shall not be obligated to deliver any Per Share Merger Consideration to any holder of Company Common Stock until such holder surrenders the Certificates as provided herein. No dividends declared will be remitted, nor any voting rights granted, to any person entitled to receive Parent Common Stock under this Agreement until such person surrenders the Certificate representing the right to receive such Parent Common Stock, at which time such dividends on whole shares of Parent Common Stock with a record date on or after the Effective Time shall be remitted to such person, without interest and less any taxes that may have been imposed thereon, and voting rights will be restored. Certificates surrendered for exchange by any person constituting an “affiliate” of Company for purposes of Rule 144 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”) shall not be exchanged for certificates representing Parent Common Stock until Parent has received a written agreement from such person as specified in Section 6.2(e). Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof shall be liable to any holder of Company Common Stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Parent and the Exchange Agent shall be entitled to rely upon the stock transfer books of Company to establish the identity of those persons entitled to receive consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to transfer of ownership of stock represented by any Certificate, Company Common Stock that is not registered in the Exchange Agent shall be entitled to deposit any consideration in respect thereof in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(vi) If any Per Share Merger Consideration is to be issued to a person other than a person in whose name a surrendered Certificate is registeredtransfer records of the Company, it shall be a condition to the issuance of issuance Merger Consideration that the Certificate(s) so surrendered Certificate shall be properly endorsed or be otherwise in proper form for transfer and that the person requesting such issuance transferee shall pay to the Exchange Agent any required transfer or other taxes or establish to the satisfaction of the Exchange Agent Parent that such any applicable transfer tax has been paid or is was not applicablepayable.
(viic) As of the Effective Time, the holders of Certificates representing shares of Company Common Stock shall cease to have any rights as Stockholders of the Company, except such rights, if any, as they may have pursuant to the Code or this Agreement. Except as provided above, until such Certificates are surrendered for exchange, each such Certificate shall, after the Effective Time, represent for all purposes only the right to receive Merger Consideration.
(d) In the event any Certificate Certificates shall have been lost, stolen stolen, or destroyed, the Surviving Company shall distribute in respect of such lost, stolen, or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, such Merger Consideration as may be required with respect to such Certificates pursuant to this Article 2; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen stolen, or destroyed Certificate shall to deliver to the Exchange Agent an affidavit stating such fact, in form satisfactory to Parent, and, at Parent’s discretion, a bond in such reasonable sum as the Exchange Agent Parent may reasonably direct as indemnity against any claim that may be made against Parent or Company or its successor or any other party with respect to the such Certificate alleged to have been lost, stolen stolen, or destroyed. Upon such delivery.
(e) No certificates representing fractional shares of Parent Common Stock, or book-entry credit of the owner same, shall have be issued upon the right to receive the Per Share Merger Consideration surrender for exchange of Certificates, no dividend or distribution with respect to Parent Common Stock shall be payable on or with respect to any fractional share and such fractional share interests shall not entitle the shares represented by the lost, stolen or destroyed Certificateowner thereof to any rights of a stockholder of Parent.
Appears in 1 contract
Exchange of Company Common Stock. (ia) As soon as reasonably practicableAt or prior to the Effective Time, Parent shall cause Parent's stock transfer agent or such other person as Parent may appoint and is reasonably satisfactory to the Company to act as exchange agent (the "Exchange Agent") hereunder. As promptly as practicable after the Effective Time, Parent shall cause the Exchange Agent to mail or cause to be delivered a letter of transmittal to holders each holder of record (other than Parent, Merger Subsidiary, the Company, or any wholly owned subsidiary of Parent or the Company) of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock instructing such holders to tender the certificates for ("Company Common Stock (the “Certificate” or “Certificates”") to Computershare (the “Exchange Agent”). Such a form letter of transmittal (which shall specify that delivery shall be effective, and risk of loss and title to Certificates the Company Certificate(s) shall pass pass, only upon acceptance delivery of such Certificates by the Company Certificate(s) to the Exchange Agent) and instructions for such holder's use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock and cash in lieu of any fractional shares.
(iib) After As soon as practicable after the Effective Time, each holder the Exchange Agent shall distribute to holders of a Certificate that surrenders such Certificate shares of Company Common Stock, upon surrender to the Exchange Agent will, upon acceptance thereof by the Exchange Agent, be entitled to the Per Share Merger Consideration payable in respect of the shares represented thereby as determined under Section1.3(a).
(iii) The Exchange Agent shall accept Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof and in accordance with customary exchange practices. Certificates shall be appropriately endorsed one or accompanied by such instruments of transfer as the Exchange Agent may reasonably require.
(iv) Each outstanding Certificate, other than those representing Perfected Dissenting Shares, shall until duly surrendered to the Exchange Agent be deemed to evidence the right to receive the Per Share Merger Consideration payable in respect of the shares represented thereby.
(v) After the Effective Time, holders of Certificates shall cease to have rights with respect to the more Company Common Stock previously represented by such Certificates, and their sole rights (other than the holders of Certificates representing Perfected Dissenting Shares) shall be to exchange such Certificates for the Per Share Merger Consideration. At the Effective Timecancellation, Company shall deliver together with a certified copy duly-executed letter of a list of its shareholders to the Exchange Agent. After the Effective Timetransmittal, there shall be no further transfer of Certificates on the records of Company, and if such Certificates are presented to Company for transfer, they shall be canceled against delivery of the Per Share Merger Consideration. Parent shall not be obligated to deliver any Per Share Merger Consideration to any holder of Company Common Stock until such holder surrenders the Certificates as provided herein. No dividends declared will be remitted, nor any voting rights granted, to any person entitled to receive Parent Common Stock under this Agreement until such person surrenders the Certificate (i) one or more certificates representing the right to receive such Parent Common Stock, at which time such dividends on number of whole shares of Parent Common Stock with a record date on or after into which the Effective Time shares represented by the Company Certificate(s) shall be remitted to such person, without interest and less any taxes that may have been imposed thereonconverted pursuant to Section 1.3(a), (ii) a bank check in the amount of cash into which the shares represented by the Company Certificate(s) shall have been converted pursuant to Section 1.5(f) (relating to fractional shares), and voting rights will be restored. Certificates surrendered for exchange by (iii) any person constituting an “affiliate” of Company for purposes of Rule 144 under the Securities Act of 1933, as amendeddividends or other distributions to which such holder is entitled pursuant to Section 1.5(c), and the rules and regulations thereunder (the “Securities Act”Company Certificate(s) shall not be exchanged for certificates representing Parent Common Stock until Parent has received a written agreement from such person as specified in Section 6.2(e). Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof so surrendered shall be liable to any holder of Company Common Stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Parent and the Exchange Agent shall be entitled to rely upon the stock transfer books of Company to establish the identity of those persons entitled to receive consideration specified in this Agreement, which books shall be conclusive with respect theretocanceled. In the event of a dispute with respect to transfer of ownership of stock represented by any Certificate, Company Common Stock that is not registered in the Exchange Agent shall be entitled to deposit any consideration in respect thereof in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(vi) If any Per Share Merger Consideration is to be issued to a person other than a person in whose name a surrendered Certificate is registeredtransfer records of the Company, it shall be a condition to the issuance of issuance shares of Parent Common Stock that the Company Certificate(s) so surrendered Certificate shall be properly endorsed or be otherwise in proper form for transfer and that the person requesting such issuance transferee shall (i) pay to the Exchange Agent any required transfer or other taxes required or (ii) establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicablepayable.
(viic) In Holders of Company Common Stock will be entitled to any dividends or other distributions pertaining to the event any Certificate shall Parent Common Stock received in exchange therefor that become payable to persons who are holders of record of Parent Common Stock as of a record date that follows the Effective Time, but only after they have been lostsurrendered their Company Certificates for exchange. Subject to the effect, stolen or destroyedif any, of applicable law, the owner of Exchange Agent shall receive, hold, and remit any such lostdividends or other distributions to each such record holder entitled thereto, stolen or destroyed Certificate shall deliver without interest, at the time that such Company Certificates are surrendered to the Exchange Agent an affidavit stating such factfor exchange. Holders of Company Common Stock will not be entitled, in form satisfactory however, to Parent, and, at Parent’s discretion, dividends or other distributions that become payable before or after the Effective Time to persons who were holders of record of Parent Common Stock as of a bond in such reasonable sum as the Exchange Agent may direct as indemnity against any claim record date that may be made against Parent or Company or its successor or any other party with respect is prior to the Certificate alleged Effective Time.
(d) All certificates evidencing shares of Parent Common Stock that are issued upon the surrender for exchange of Company Certificates in accordance with the terms hereof, together with any cash paid for fractional shares pursuant to Section 1.5(f) hereof, shall be deemed to have been lostissued in full satisfaction of all rights pertaining to the shares of Company Common Stock represented by the surrendered Company Certificates.
(e) After the Effective Time, stolen or destroyedthere shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. Upon If, after the Effective Time, Company Certificates representing such deliveryshares are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article 1. As of the Effective Time, the owner holders of Company Certificates representing shares of Company Common Stock shall cease to have any rights as stockholders of the Company, except such rights, if any, as they may have pursuant to the DGCL or this Agreement. Except as provided above, until such Company Certificates are surrendered for exchange, each such Company Certificate shall, after the Effective Time, represent for all purposes only the right to receive a certificate or certificates evidencing the number of whole shares of Parent Common Stock into which the shares of Company Common Stock shall have been converted pursuant to the Merger as provided in Section 1.3(a) hereof, the right to receive the Per Share Merger Consideration cash value of any fraction of a share of Parent Common Stock as provided in Section 1.5(f) hereof and the right to receive any dividends or distributions as provided in Section 1.5(c).
(f) No fractional shares of Parent Common Stock and no certificates or scrip therefor, or other evidence of ownership thereof, shall be issued in connection with respect the Merger, no dividend or other distribution of Parent shall relate to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a shareholder of Parent. All fractional shares of Parent Common Stock to which a holder of Company Common Stock immediately prior to the Effective Time would otherwise be entitled, at the Effective Time, shall be aggregated if and to the extent multiple Company Certificates of such holder are submitted together to the Exchange Agent. If a fractional share results from such aggregation, then (in lieu of such fractional share) the Exchange Agent shall pay to each holder of shares represented of Company Common Stock who otherwise would be entitled to receive such fractional share of Parent Common Stock an amount of cash (without interest) determined by the lost, stolen or destroyed Certificate.multiplying (i) the
Appears in 1 contract
Samples: Merger Agreement (Arterial Vascular Engineering Inc)
Exchange of Company Common Stock. (ia) As soon as reasonably practicablepracticable after the date of this Amended and Restated Agreement, Parent shall mail engage Corporate Stock Transfer, Inc., Parent’s transfer agent, or cause another bank or trust company reasonably satisfactory to be delivered a letter of transmittal Parent and the Surviving Corporation, to holders of record of Company Common Stock instructing such holders to tender act as exchange agent in the certificates for Company Common Stock (the “Certificate” or “Certificates”) to Computershare Merger (the “Exchange Agent”). Such letter of transmittal ) and shall specify that risk of loss enter into an agreement reasonably acceptable to the Parent and title the Surviving Corporation with the Exchange Agent relating to Certificates shall pass only upon acceptance of such Certificates the services to be performed by the Exchange Agent.
(b) As soon as practicable after the date of this Amended and Restated Agreement, and not less than ten business days prior to the Closing Date, Parent shall cause the Exchange Agent to send to each Company Stockholder: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Surviving Corporation shall reasonably approve (including a provision confirming that delivery of certificates representing any shares of Company Stock (each a “Company Stock Certificate”) shall be effected, and risk of loss and title to shares of Company Stock represented by Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Exchange Agent); and (ii) After instructions for use in effecting the surrender of Company Stock Certificates (or delivery of an affidavit of loss as provided in clause (c) below) in exchange for certificates representing Parent Stock. Promptly after the Effective Time, each holder upon surrender of a Company Stock Certificate that surrenders such Certificate (or delivery of an affidavit of loss as provided in clause (c) below) to the Exchange Agent willfor exchange, upon acceptance thereof together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent, Agent or Parent: (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor one or more certificates representing the Per Share number of shares of Parent Stock that such holder has the right to receive pursuant to Section 1.5 (or in lieu of such certificate(s), confirmation of the issuance of such Parent Stock via book entry in the books of the Exchange Agent); and (B) the Company Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.8(b), each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive a portion of the Aggregate Merger Consideration payable as set forth in respect of the shares represented thereby as determined under Section1.3(a).
(iii) The Exchange Agent shall accept Certificates upon compliance with such reasonable terms Section 1.5. In any matters relating to Company Stock Certificates, Parent and conditions as the Exchange Agent may impose to effect an orderly exchange thereof rely conclusively upon the record of stockholders maintained by the Surviving Corporation containing the names and in accordance with customary exchange practices. Certificates shall be appropriately endorsed or accompanied by such instruments of transfer as the Exchange Agent may reasonably require.
(iv) Each outstanding Certificate, other than those representing Perfected Dissenting Shares, shall until duly surrendered to the Exchange Agent be deemed to evidence the right to receive the Per Share Merger Consideration payable in respect addresses of the shares represented thereby.
(v) After holders of record of Company Stock at the Effective Time, holders of Certificates shall cease to have rights with respect except to the Company Common Stock previously represented extent such names or addresses are modified by such Certificates, and any stockholders in their sole rights (other than the holders respective letters of Certificates representing Perfected Dissenting Shares) shall be to exchange such Certificates for the Per Share Merger Consideration. At the Effective Time, Company shall deliver a certified copy of a list of its shareholders to the Exchange Agent. After the Effective Time, there shall be no further transfer of Certificates on the records of Company, and if such Certificates are presented to Company for transfer, they shall be canceled against delivery of the Per Share Merger Considerationtransmittal. Parent shall not be obligated to deliver any Per Share stock certificates (if any) representing Aggregate Merger Consideration to which any former holder of Company Common Stock is entitled until such holder surrenders delivers the Certificates as provided herein. No dividends declared will be remitted, nor any voting rights granted, to any person entitled to receive Parent Common Stock under this Agreement until such person surrenders the Certificate representing the right to receive such Parent Common Stock, at which time such dividends on whole shares of Parent Common Stock with a record date on or after the Effective Time shall be remitted to such person, without interest and less any taxes that may have been imposed thereon, and voting rights will be restored. Certificates surrendered for exchange by any person constituting an “affiliate” of Company for purposes of Rule 144 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”) shall not be exchanged for certificates representing Parent Common Stock until Parent has received a written agreement from such person as specified in Section 6.2(e). Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof shall be liable to any holder of Company Common Stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Parent and the Exchange Agent shall be entitled to rely upon the stock transfer books of Company to establish the identity of those persons entitled to receive consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of stock represented by any Certificate, the Exchange Agent shall be entitled to deposit any consideration in respect thereof in escrow with an independent third party and thereafter be relieved with respect to any claims theretodocumentation required hereunder.
(vic) If any Per Share Merger Consideration is to be issued to a person other than a person in whose name a surrendered Certificate is registered, it shall be a condition of issuance that the surrendered Certificate shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such issuance shall pay to the Exchange Agent any required transfer or other taxes or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable.
(vii) In the event any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate shall to provide an appropriate affidavit and to deliver to a bond (in such sum as Parent and the Exchange Agent an affidavit stating such fact, in form satisfactory reasonably agree to Parent, and, at Parent’s discretion, a bond in such reasonable sum as the Exchange Agent may direct direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or Company or its successor or any other party the Surviving Corporation with respect to such Company Stock Certificate.
(d) After the Certificate alleged Effective Time, any holders of Company Stock Certificates who have not previously surrendered their Company Stock Certificates in accordance with this Section 1.8 shall look only to have been lostParent, stolen or destroyed. Upon such deliveryand not Exchange Agent, the owner shall have the right for, and be entitled to receive the Per Share Merger Consideration from Parent, satisfaction of their claims for Parent Stock, and any dividends or distributions with respect to such shares of Parent Stock.
(e) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax Legal Requirement or under any other applicable Legal Requirement.
(f) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock or to any other Person with respect to any shares represented by the lostof Parent Stock (or dividends or distributions with respect thereto), stolen or destroyed Certificatefor any cash amounts, delivered to any public official pursuant to any applicable abandoned property Legal Requirement, escheat Legal Requirement or other similar Legal Requirement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Precision Therapeutics Inc.)
Exchange of Company Common Stock. (ia) As soon Promptly after the Effective Time, Fiserv shall cause Fiserv's stock transfer agent or such other person as reasonably practicable, Parent shall Fiserv may appoint to act as exchange agent (the "Exchange Agent") to mail or cause to be delivered a letter of transmittal to holders each holder of record (other than Fiserv, Fiserv Sub or any other subsidiary of Fiserv or the Company) of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock instructing such holders to tender the certificates for ("Company Common Stock Certificates") (the “Certificate” or “Certificates”i) to Computershare (the “Exchange Agent”). Such a form letter of transmittal (which shall specify that delivery shall be effective, and risk of loss and title to Certificates the Company Certificate(s) shall pass pass, only upon acceptance delivery of such Certificates by the Company Certificate(s) to the Exchange Agent) and (ii) instructions for such holder's use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Fiserv Common Stock.
(iib) After As soon as practicable after the Effective Time, each holder the Exchange Agent shall distribute to holders of a Certificate that surrenders such Certificate shares of Company Common Stock, upon surrender to the Exchange Agent willof one or more Company Certificates for cancellation, upon acceptance thereof by together with a duly-executed letter of transmittal, (i) one or more Fiserv certificates representing the Exchange Agent, be entitled to the Per Share Merger Consideration payable in respect number of whole shares of Fiserv Common Stock into which the shares represented thereby as determined under Section1.3(a).
by the Company Certificate(s) shall have been converted pursuant to Section 3.01, and (iiiii) The Exchange Agent shall accept Certificates upon compliance with such reasonable terms and conditions as a bank check in the Exchange Agent may impose to effect an orderly exchange thereof and in accordance with customary exchange practices. Certificates shall be appropriately endorsed or accompanied by such instruments amount of transfer as the Exchange Agent may reasonably require.
(iv) Each outstanding Certificate, other than those representing Perfected Dissenting Shares, shall until duly surrendered to the Exchange Agent be deemed to evidence the right to receive the Per Share Merger Consideration payable in respect of cash into which the shares represented thereby.
(v) After the Effective Time, holders of Certificates shall cease to have rights with respect to by the Company Common Stock previously represented by such Certificates, and their sole rights (other than the holders of Certificates representing Perfected Dissenting SharesCertificate(s) shall be to exchange such Certificates for the Per Share Merger Consideration. At the Effective Time, Company shall deliver a certified copy of a list of its shareholders to the Exchange Agent. After the Effective Time, there shall be no further transfer of Certificates on the records of Company, and if such Certificates are presented to Company for transfer, they shall be canceled against delivery of the Per Share Merger Consideration. Parent shall not be obligated to deliver any Per Share Merger Consideration to any holder of Company Common Stock until such holder surrenders the Certificates as provided herein. No dividends declared will be remitted, nor any voting rights granted, to any person entitled to receive Parent Common Stock under this Agreement until such person surrenders the Certificate representing the right to receive such Parent Common Stock, at which time such dividends on whole shares of Parent Common Stock with a record date on or after the Effective Time shall be remitted to such person, without interest and less any taxes that may have been imposed thereon, and voting rights will be restored. Certificates surrendered for exchange by any person constituting an “affiliate” of Company for purposes of Rule 144 under the Securities Act of 1933, as amendedconverted pursuant to Section 3.03(f) (relating to fractional shares), and the rules and regulations thereunder (the “Securities Act”Company Certificate(s) shall not be exchanged for certificates representing Parent Common Stock until Parent has received a written agreement from such person as specified in Section 6.2(e). Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof so surrendered shall be liable to any holder of Company Common Stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Parent and the Exchange Agent shall be entitled to rely upon the stock transfer books of Company to establish the identity of those persons entitled to receive consideration specified in this Agreement, which books shall be conclusive with respect theretocanceled. In the event of a dispute with respect to transfer of ownership of stock represented by any Certificate, Company Common Stock that is not registered in the Exchange Agent shall be entitled to deposit any consideration in respect thereof in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(vi) If any Per Share Merger Consideration is to be issued to a person other than a person in whose name a surrendered Certificate is registeredtransfer records of the Company, it shall be a condition to the issuance of issuance shares of Fiserv Common Stock that the Company Certificate(s) so surrendered Certificate shall be properly endorsed or be otherwise in proper form for transfer and that the person requesting such issuance transferee shall (i) pay to the Exchange Agent any required transfer or other taxes required, or (ii) establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicablepayable.
(viic) Holders of Company Common Stock will be entitled to any dividends or other distributions pertaining to the Fiserv Common Stock received in exchange therefor that become payable to persons who are holders of record of Fiserv Common Stock as of a record date on the same date as or after the Effective Time, but only after they have surrendered their Company Certificates for exchange. Subject to the effect, if any, of applicable law, the Exchange Agent shall receive, hold, and remit any such dividends or other distributions to each such record holder entitled thereto, without interest, at the time that such Company Certificates are surrendered to the Exchange Agent for exchange. Holders of Company Common Stock will not be entitled, however, to dividends or other distributions that become payable before or after the Effective Time to persons who were holders of record of Fiserv Common Stock as of a record date that is prior to the Effective Time.
(d) All shares of Fiserv Common Stock issued upon the surrender for exchange of Company Common Stock in accordance with the terms hereof (including any cash paid for fractional shares pursuant to Section 3.03(f) hereof) shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of Company Common Stock.
(e) After the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Certificates representing such shares are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article III. As of the Effective Time, the holders of Company Certificates representing shares of Company Common Stock shall cease to have any rights as stockholders of the Company, except such rights, if any, as they may have pursuant to Delaware Law. Except as provided above, until such Company Certificates are surrendered for exchange, each such Company Certificate shall, after the Effective Time, represent for all purposes only the right to receive the number of whole shares of Fiserv Common Stock into which the shares of Company Common Stock shall have been converted pursuant to the Merger as provided in Section 3.01 hereof and the right to receive the cash value of any fraction of a share of Fiserv Common Stock as provided in Section 3.03(f) hereof.
(f) No fractional shares of Fiserv Common Stock and no certificates or scrip therefor, or other evidence of ownership thereof, shall be issued upon the surrender for exchange of Company Certificates, no dividend or other distribution of Fiserv shall relate to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a stockholder of Fiserv. All fractional shares of Fiserv Common Stock to which a holder of Company Common Stock immediately prior to the Effective Time would otherwise be entitled, at the Effective Time, shall be aggregated if and to the extent multiple Company Certificates of such holder are submitted together to the Exchange Agent. If a fractional share results from such aggregation, then (in lieu of such fractional share) the Exchange Agent shall pay to each holder of shares of Company Common Stock who otherwise would be entitled to receive such fractional share of Fiserv Common Stock an amount of cash (without interest) determined by multiplying (i) the fractional share of Fiserv Common Stock to which such holder would otherwise be entitled, by (ii) the amount which is equal to the average closing price per share for Fiserv Common Stock as reported on the National Market System by the National Association of Securities Dealers, Inc. Automated Quotations (as reported in The Wall Street Journal) for the twenty business days ending two business days prior to the Effective Time. Fiserv will make available to the Exchange Agent any cash necessary for this purpose.
(g) In the event any Company Certificate shall have been lost, stolen stolen, or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen, or destroyed Company Certificate, upon the making of an affidavit of that fact by the holder thereof, such shares of Fiserv Common Stock and cash for fractional shares, if any, as may be required pursuant to Section 3.01 and 3.03(f); provided, however, that Fiserv may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen stolen, or destroyed Certificate shall Company Certificates to deliver to the Exchange Agent an affidavit stating such fact, in form satisfactory to Parent, and, at Parent’s discretion, a bond in such reasonable sum as the Exchange Agent Fiserv may direct as indemnity against any claim that may be made against Parent Fiserv or Company or its successor or any other party the Exchange Agent with respect to the Certificate such Company Certificates alleged to have been lost, stolen stolen, or destroyed. Upon such delivery, the owner shall have the right to receive the Per Share Merger Consideration with respect .
(h) Notwithstanding anything to the contrary in this Section 3.03, none of Fiserv or the Surviving Corporation shall be liable to a holder of shares represented by the lostof Company Common Stock for any amount properly paid to a public official pursuant to any applicable abandoned property, stolen escheat or destroyed Certificatesimilar law.
Appears in 1 contract
Samples: Merger Agreement (Avidyn Inc)
Exchange of Company Common Stock. (i) As soon as reasonably practicableof the Effective Time, Parent Bank shall mail have deposited with the Exchange Agent, for the benefit of holders of Company Common Stock, funds in an amount not less than the cash payable pursuant to Section 1.4(d) of this Agreement and payable as cash in lieu of fractional shares of Parent Common Stock which would otherwise be issuable in connection with Section 1.4(d) hereof but for the operation of Section 1.4(j) of this Agreement.
(ii) As promptly as practicable but not later than five business days after the Effective Time, Parent Bank shall cause the Exchange Agent to effect the allocation among the holders of Company Common Stock who properly made a Cash/Stock Election for Parent Common Stock or cash in accordance with each holder’s Form of Election, subject to adjustments made, if any, pursuant to Section 1.4(d).
(iii) As to those Company shareholders who have not tendered their shares in connection with the election procedures set forth above, within 10 business days after the Effective Time, holders of record of Company Stock Certificates shall be instructed to tender such Certificates to the Exchange Agent pursuant to a letter of transmittal that Parent Bank shall deliver or cause to be delivered a letter of transmittal to holders of record of Company Common Stock instructing such holders to tender the certificates for Company Common Stock (the “Certificate” or “Certificates”) to Computershare (the “Exchange Agent”)holders. Such letter of transmittal shall specify that risk of loss and title to Certificates shall pass only upon acceptance of such Certificates by Parent Bank or the Exchange Agent.
(iiiv) After the Effective Time, each holder of a Certificate that surrenders such Certificate to Parent Bank or the Exchange Agent will, upon acceptance thereof by Parent Bank or the Exchange Agent, be entitled to the Per Share Merger Consideration payable in respect of the shares represented thereby as determined under Section1.3(aSection 1.4(d).
(iiiv) The Parent Bank or the Exchange Agent shall accept Certificates upon compliance with such reasonable terms and conditions as Parent Bank or the Exchange Agent may impose to effect an orderly exchange thereof and in accordance with customary exchange practices. Certificates shall be appropriately endorsed or accompanied by such instruments of transfer as Parent Bank or the Exchange Agent may reasonably require.
(ivvi) Each outstanding Certificate, other than those representing Perfected Dissenting Shares, shall until duly surrendered to Parent Bank or the Exchange Agent be deemed to evidence only the right to receive the Per Share Merger Consideration payable in respect of the shares represented thereby.
(vvii) After the Effective Time, holders of Certificates shall cease to have rights with respect to the Company Common Stock or Company Bank Common Stock previously represented by such Certificates, and their sole rights (other than the holders of Certificates representing Perfected Dissenting Shares) shall be to exchange such Certificates for the Per Share Merger Consideration. At the Effective Time, Company shall deliver a certified copy of a list of its shareholders to the Exchange Agent. After the Effective Time, there shall be no further transfer of Certificates on the records of CompanyCompany Entities, and if such Certificates are presented to Company Entities for transfer, they shall be canceled against delivery of the Per Share Merger Consideration. Parent Bank shall not be obligated to deliver any Per Share Merger Consideration merger consideration pursuant to this Article I to any former holder of Company Common Stock until such holder surrenders the Certificates as provided hereinherein except as provided in paragraph (ix) below. No dividends declared will be remitted, nor any voting rights granted, to any person entitled to receive Parent Common Stock under this Agreement until such person surrenders the Certificate representing the right to receive such Parent Common Stock, at which time such dividends on whole shares of Parent Common Stock with a record date on or after the Effective Time shall be remitted to such person, without interest and less any taxes that may have been imposed thereon, and voting rights will be restored. Certificates surrendered for exchange by any person constituting an “affiliate” of Company Entities for purposes of Rule 144 145 under the Securities Act of 1933, as amended, 1933 and the rules and regulations thereunder (the “Securities Act”) shall not be exchanged for certificates representing Parent Common Stock until Parent Bank has received a written agreement from such person as specified in Section 6.2(e)5.3. Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof shall be liable to any holder of Company Common Stock represented by any Certificate for any merger consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Parent Bank and the Exchange Agent shall be entitled to rely upon the stock transfer books of Company Entities to establish the identity of those persons entitled to receive merger consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of stock represented by any Certificate, Parent Bank or the Exchange Agent shall be entitled to deposit any merger consideration in respect thereof in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(viviii) If any Per Share Merger Consideration payable pursuant to this Article I is to be issued to a person other than a person in whose name a surrendered Certificate is registered, it shall be a condition of issuance that the surrendered Certificate shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such issuance shall pay to Parent Bank or the Exchange Agent any required transfer or other taxes or establish to the satisfaction of Parent Bank or the Exchange Agent that such tax has been paid or is not applicable.
(viiix) In the event any Certificate shall have been lost, stolen or destroyed, the owner of such lost, stolen or destroyed Certificate shall deliver to Parent Bank or the Exchange Agent an affidavit stating such fact, in form reasonably satisfactory to ParentParent Bank, and, at Parent’s discretion, a bond in such reasonable sum as if reasonably required by the Exchange Agent may direct as consistent with its policies and procedures, indemnity in a customary amount against any claim that may be made against Parent Bank or Company or its successor or any other party with respect to the Certificate alleged to have been lost, stolen or destroyed. Upon such delivery, the owner shall have the right to receive the Per Share Merger Consideration with respect to the shares represented by the lost, stolen or destroyed Certificate.
Appears in 1 contract
Exchange of Company Common Stock. (a) At or prior to the Effective Time, Parent shall cause the Company's stock transfer agent, or such other agent as is mutually agreed to by the parties, to act as exchange agent (the "Exchange Agent") hereunder. As promptly as practicable after the Effective Time, Parent shall cause the Exchange Agent to mail (i) As soon as reasonably practicable, Parent shall mail or cause to be delivered a letter of transmittal to holders each holder of record (other than Parent, Merger Subsidiary, the Company, or any wholly owned subsidiary of Parent or the Company) of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock instructing such holders to tender the certificates for ("Company Common Stock (the “Certificate” or “Certificates”") to Computershare (the “Exchange Agent”). Such a form letter of transmittal (which shall specify that delivery shall be effective, and risk of loss and title to Certificates the Company Certificate(s) shall pass pass, only upon acceptance delivery of such Certificates by the Company Certificate(s) to the Exchange Agent) and instructions for such holder's use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock and cash in lieu of any fractional shares, and (ii) to each holder of Company Option(s) a form letter of transmittal and instructions for such holder's use in effecting the receipt of certificates representing shares of Parent Common Stock and cash in lieu of any fractional shares in exchange for such Company Option(s).
(iib) After As soon as practicable after the Effective Time, each holder the Exchange Agent shall distribute to holders of a Certificate that surrenders such Certificate shares of Company Common Stock, upon surrender to the Exchange Agent will, upon acceptance thereof by the Exchange Agent, be entitled to the Per Share Merger Consideration payable in respect of the shares represented thereby as determined under Section1.3(a).
(iii) The Exchange Agent shall accept Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof and in accordance with customary exchange practices. Certificates shall be appropriately endorsed one or accompanied by such instruments of transfer as the Exchange Agent may reasonably require.
(iv) Each outstanding Certificate, other than those representing Perfected Dissenting Shares, shall until duly surrendered to the Exchange Agent be deemed to evidence the right to receive the Per Share Merger Consideration payable in respect of the shares represented thereby.
(v) After the Effective Time, holders of Certificates shall cease to have rights with respect to the more Company Common Stock previously represented by such Certificates, and their sole rights (other than the holders of Certificates representing Perfected Dissenting Shares) shall be to exchange such Certificates for the Per Share Merger Consideration. At the Effective Timecancellation, Company shall deliver together with a certified copy duly-executed letter of a list of its shareholders to the Exchange Agent. After the Effective Timetransmittal, there shall be no further transfer of Certificates on the records of Company, and if such Certificates are presented to Company for transfer, they shall be canceled against delivery of the Per Share Merger Consideration. Parent shall not be obligated to deliver any Per Share Merger Consideration to any holder of Company Common Stock until such holder surrenders the Certificates as provided herein. No dividends declared will be remitted, nor any voting rights granted, to any person entitled to receive Parent Common Stock under this Agreement until such person surrenders the Certificate (i) one or more certificates representing the right to receive such Parent Common Stock, at which time such dividends on number of whole shares of Parent Common Stock with a record date on or after into which the Effective Time shares represented by the Company Certificate(s) shall be remitted to such person, without interest and less any taxes that may have been imposed thereonconverted pursuant to Section 1.3(a), (ii) a bank check in the amount of cash into which the shares represented by the Company Certificate(s) shall have been converted pursuant to Section 1.5(f) (relating to fractional shares), and voting rights will be restored. Certificates surrendered for exchange by (iii) any person constituting an “affiliate” of Company for purposes of Rule 144 under the Securities Act of 1933, as amendeddividends or other distributions to which such holder is entitled pursuant to Section 1.5(c), and the rules and regulations thereunder (the “Securities Act”Company Certificate(s) shall not be exchanged for certificates representing Parent Common Stock until Parent has received a written agreement from such person as specified in Section 6.2(e). Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof so surrendered shall be liable to any holder of Company Common Stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Parent and the Exchange Agent shall be entitled to rely upon the stock transfer books of Company to establish the identity of those persons entitled to receive consideration specified in this Agreement, which books shall be conclusive with respect theretocanceled. In the event of a dispute with respect to transfer of ownership of stock represented by any Certificate, Company Common Stock that is not registered in the Exchange Agent shall be entitled to deposit any consideration in respect thereof in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(vi) If any Per Share Merger Consideration is to be issued to a person other than a person in whose name a surrendered Certificate is registeredtransfer records of the Company, it shall be a condition to the issuance of issuance shares of Parent Common Stock that the Company Certificate(s) so surrendered Certificate shall be properly endorsed or be otherwise in proper form for transfer and that the person requesting such issuance transferee shall (i) pay to the Exchange Agent any required transfer or other taxes required or (ii) establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicablepayable. As soon as practicable after the Effective Time, the Exchange Agent shall distribute to holders of Company Options, upon surrender to the Exchange Agent of a duly-executed letter of transmittal, (i) one or more certificates representing the number of whole shares of Parent Common Stock into which the Option Shares represented by the Company Options shall have been converted pursuant to Section 1.3(a), (ii) a bank check in the amount of cash into which the Option Shares represented by the Company Options shall have been converted pursuant to Section 1.5(f) (relating to fractional shares), and (iii) any dividends or other distributions to which such holder is entitled pursuant to Section 1.5(c).
(viic) Holders of Company Common Stock or Company Options will be entitled to any dividends or other distributions pertaining to the Parent Common Stock received in exchange therefor that become payable to persons who are holders of record of Parent Common Stock as of a record date that follows the Effective Time, but only (i) for holders of Company Common Stock, after they have surrendered their Company Certificates for exchange and (ii) for holders of Company Options, after they have submitted a duly-executed letter of transmittal. Subject to the effect, if any, of applicable law, the Exchange Agent shall receive, hold, and remit any such dividends or other distributions to each such record holder entitled thereto, without interest, at the time that such Company Certificates are surrendered to the Exchange Agent for exchange. Holders of Company Common Stock or Company Options will not be entitled, however, to dividends or other distributions that become payable before or after the Effective Time to persons who were holders of record of Parent Common Stock as of a record date that is prior to the Effective Time.
(d) All certificates evidencing shares of Parent Common Stock that are issued (i) upon the surrender for exchange of Company Certificates or (ii) in exchange for Company Options in accordance with the terms hereof, together with any cash paid for fractional shares pursuant to Section 1.5(f) hereof, shall be deemed to have been issued in full satisfaction of all rights pertaining to the shares of Company Common Stock represented by the surrendered Company Certificates or Option Shares represented by the Company Options, respectively.
(e) After the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Certificates representing such shares are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article 1. As of the Effective Time, the holders of Company Certificates representing shares of Company Common Stock shall cease to have any rights as stockholders of the Company, except such rights, if any, as they may have pursuant to the DGCL or this Agreement. Except as provided above, until such Company Certificates are surrendered for exchange, each such Company Certificate shall, after the Effective Time, represent for all purposes only the right to receive a certificate or certificates evidencing the number of whole shares of Parent Common Stock into which the shares of Company Common Stock shall have been converted pursuant to the Merger as provided in Section 1.3(a) hereof, the right to receive the cash value of any fraction of a share of Parent Common Stock as provided in Section 1.5(f) hereof and the right to receive any dividends or distributions as provided in Section 1.5(c). As of the Effective Time, the holders of Company Options shall cease to have any rights as optionholders of the Company, except such rights, if any, as they may have pursuant to this Agreement.
(f) No fractional shares of Parent Common Stock and no certificates or scrip therefor, or other evidence of ownership thereof, shall be issued in connection with the Merger, no dividend or other distribution of Parent shall relate to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a shareholder of Parent. All fractional shares of Parent Common Stock to which a holder of Company Common Stock or Company Option(s) immediately prior to the Effective Time would otherwise be entitled, at the Effective Time, shall be aggregated if and to the extent multiple Company Certificates of such holder are submitted together to the Exchange Agent and/or multiple Company Options are held by such holder. If a fractional share results from such aggregation, then (in lieu of such fractional share) the Exchange Agent shall pay to each holder of shares of Company Common Stock or Company Options who otherwise would be entitled to receive such fractional share of Parent Common Stock an amount of cash (without interest) determined by multiplying (i) the closing sale price of a share of Parent Common Stock as reported by the Nasdaq National Market on the Closing Date by (ii) the fractional share of Parent Common Stock to which such holder would otherwise be entitled. Parent will make available to the Exchange Agent any cash necessary for this purpose.
(g) In the event any Certificate Company Certificates shall have been lost, stolen stolen, or destroyed, the Exchange Agent shall issue in respect of such lost, stolen, or destroyed Company Certificates, upon the making of an affidavit of that fact by the holder thereof, such shares of Parent Common Stock, cash for fractional shares, if any, and dividends or other distributions, if any, as may be required pursuant to this Article 1; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen stolen, or destroyed Company Certificate shall to deliver to the Exchange Agent an affidavit stating such fact, in form satisfactory to Parent, and, at Parent’s discretion, a bond in such reasonable sum as the Exchange Agent Parent may reasonably direct as indemnity against any claim that may be made against Parent or Company or its successor or any other party the Exchange Agent with respect to the such Company Certificate alleged to have been lost, stolen stolen, or destroyed. Upon such delivery, the owner shall have the right to receive the Per Share Merger Consideration with respect to the shares represented by the lost, stolen or destroyed Certificate.
Appears in 1 contract
Exchange of Company Common Stock. (ia) As soon as reasonably practicable, Parent but in no event more than five days after the Effective Time, Fiserv shall cause Fiserv's stock transfer agent or such other person as Fiserv may reasonably appoint to act as paying agent (the "Paying Agent") to mail or cause to be delivered a letter of transmittal to holders each holder of record (other than Fiserv, Fiserv Solutions, Fiserv Sub or any other subsidiary of Fiserv or the Company) of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock instructing such holders to tender the certificates for ("Company Common Stock Certificates") (the “Certificate” or “Certificates”i) to Computershare (the “Exchange Agent”). Such a form letter of transmittal (which shall specify that delivery shall be effective, and risk of loss and title to Certificates the Company Certificate(s) shall pass pass, only upon acceptance delivery of such Certificates by the Exchange Company Certificate(s) to the Paying Agent.
) and (ii) After instructions for such holder's use in effecting the surrender of the Company Certificates in exchange for payment of the Merger Consideration. Prior to or contemporaneously with the Effective Time, each holder Fiserv shall cause to be deposited with the Paying Agent amounts sufficient in the aggregate to provide all funds necessary for the Paying Agent to make payments pursuant to Section 3.01(a) to holders of a Certificate that surrenders such Certificate Company Common Stock issued and outstanding immediately prior to the Exchange Agent will, upon acceptance thereof by Effective Time who are to receive the Exchange Agent, be entitled to the Per Share Merger Consideration payable in respect of the shares represented thereby as determined under Section1.3(a)Consideration.
(iiib) The Exchange Upon surrender to the Paying Agent of one or more Company Certificates for cancellation, together with a duly-executed letter of transmittal, the Paying Agent shall accept Certificates upon compliance with distribute to the holder of such reasonable terms Company Certificate(s) a bank check (or other immediately available funds) in the amount of cash into which the shares of Company Common Stock represented by the Company Certificate(s) shall have been converted pursuant to Section 3.01(a), and conditions as the Exchange Agent may impose to effect an orderly exchange thereof and in accordance with customary exchange practices. Certificates Company Certificate(s) so surrendered shall be appropriately canceled. In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company, it shall be a condition to the payment of the Merger Consideration that the Company Certificate(s) so surrendered shall be properly endorsed or accompanied by be otherwise in proper form for transfer and that such instruments transferee shall (i) pay to the Paying Agent any transfer or other taxes required, or (ii) establish to the reasonable satisfaction of transfer as the Exchange Paying Agent may reasonably requirethat such tax has been paid or is not payable.
(ivc) Each outstanding Certificate, other than those representing Perfected Dissenting Shares, shall until duly surrendered to the Exchange Agent be deemed to evidence the right to receive the Per Share Merger Consideration payable in respect of the shares represented thereby.
(v) After the Effective Time, holders of Certificates shall cease to have rights with respect to the Company Common Stock previously represented by such Certificates, and their sole rights (other than the holders of Certificates representing Perfected Dissenting Shares) shall be to exchange such Certificates for the Per Share Merger Consideration. At the Effective Time, Company shall deliver a certified copy of a list of its shareholders to the Exchange Agent. After the Effective Time, there shall be no further transfer registration of Certificates transfers on the records stock transfer books of Companythe Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, and if after the Effective Time, Company Certificates representing such Certificates shares are presented to Company for transferthe Surviving Corporation, they shall be canceled against delivery and exchanged as provided in this Article III. As of the Per Share Merger Consideration. Parent shall not be obligated to deliver any Per Share Merger Consideration to any holder Effective Time, the holders of Company Certificates representing shares of Company Common Stock shall cease to have any rights as shareholders of the Company, except such rights, if any, as they may have pursuant to the Florida Law. Except as provided above, until such holder surrenders Company Certificates are surrendered for exchange, each such Company Certificate shall, after the Certificates as provided herein. No dividends declared will be remittedEffective Time, nor any voting rights granted, to any person entitled to receive Parent Common Stock under this Agreement until such person surrenders the Certificate representing represent for all purposes only the right to receive the cash value of such Parent Common Stock, at which time such dividends on whole shares of Parent Common Stock with a record date on or after the Effective Time shall be remitted to such person, without interest and less any taxes that may have been imposed thereon, and voting rights will be restored. Certificates surrendered for exchange by any person constituting an “affiliate” of Company for purposes of Rule 144 under the Securities Act of 1933, Shares as amended, and the rules and regulations thereunder (the “Securities Act”) shall not be exchanged for certificates representing Parent Common Stock until Parent has received a written agreement from such person as specified provided in Section 6.2(e). Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof shall be liable to any holder of Company Common Stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Parent and the Exchange Agent shall be entitled to rely upon the stock transfer books of Company to establish the identity of those persons entitled to receive consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of stock represented by any Certificate, the Exchange Agent shall be entitled to deposit any consideration in respect thereof in escrow with an independent third party and thereafter be relieved with respect to any claims thereto3.01(a) hereof.
(vi) If any Per Share Merger Consideration is to be issued to a person other than a person in whose name a surrendered Certificate is registered, it shall be a condition of issuance that the surrendered Certificate shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such issuance shall pay to the Exchange Agent any required transfer or other taxes or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable.
(viid) In the event any Company Certificate shall have been lost, stolen stolen, or destroyed, the Paying Agent shall issue in exchange for such lost, stolen, or destroyed Company Certificate, upon the making of an affidavit of that fact by the holder thereof, such cash as may be required pursuant to Section 3.01(a); provided, however, that Fiserv may, in its reasonable discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen stolen, or destroyed Certificate shall Company Certificates to deliver to the Exchange Agent an affidavit stating such fact, in form satisfactory to Parent, and, at Parent’s discretion, a bond in such reasonable sum as Fiserv may reasonably direct (but in no event in an amount greater than the Exchange Agent may direct amount of cash to which such owner is entitled pursuant to Section 3.01(a)) as indemnity against any claim that may be made against Parent Fiserv or Company or its successor or any other party the Paying Agent with respect to the Certificate such Company Certificates alleged to have been lost, stolen stolen, or destroyed. Upon such delivery, the owner shall have the right to receive the Per Share Merger Consideration with respect .
(e) Notwithstanding anything to the shares represented by the lost, stolen or destroyed Certificate.contrary in this Section 3.02,
Appears in 1 contract
Samples: Merger Agreement (Insurance Management Solutions Group Inc)
Exchange of Company Common Stock. (ia) As soon as reasonably practicableAt or prior to the Effective Time, Parent shall cause Parent's stock transfer agent or such other person as Parent may appoint and is reasonably satisfactory to the Company to act as exchange agent (the "Exchange Agent") hereunder. As promptly as practicable after the Effective Time, Parent shall cause the Exchange Agent to mail or cause to be delivered a letter of transmittal to holders each holder of record (other than Parent, Merger Subsidiary, the Company, or any wholly owned subsidiary of Parent or the Company) of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock instructing such holders to tender the certificates for ("Company Common Stock (the “Certificate” or “Certificates”") to Computershare (the “Exchange Agent”). Such a form letter of transmittal (which shall specify that delivery shall be effective, and risk of loss and title to Certificates the Company Certificate(s) shall pass pass, only upon acceptance delivery of such Certificates by the Company Certificate(s) to the Exchange Agent) and instructions for such holder's use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common Stock and cash in lieu of any fractional shares.
(iib) After As soon as practicable after the Effective Time, each holder the Exchange Agent shall distribute to holders of a Certificate that surrenders such Certificate shares of Company Common Stock, upon surrender to the Exchange Agent will, upon acceptance thereof by the Exchange Agent, be entitled to the Per Share Merger Consideration payable in respect of the shares represented thereby as determined under Section1.3(a).
(iii) The Exchange Agent shall accept Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof and in accordance with customary exchange practices. Certificates shall be appropriately endorsed one or accompanied by such instruments of transfer as the Exchange Agent may reasonably require.
(iv) Each outstanding Certificate, other than those representing Perfected Dissenting Shares, shall until duly surrendered to the Exchange Agent be deemed to evidence the right to receive the Per Share Merger Consideration payable in respect of the shares represented thereby.
(v) After the Effective Time, holders of Certificates shall cease to have rights with respect to the more Company Common Stock previously represented by such Certificates, and their sole rights (other than the holders of Certificates representing Perfected Dissenting Shares) shall be to exchange such Certificates for the Per Share Merger Consideration. At the Effective Timecancellation, Company shall deliver together with a certified copy duly-executed letter of a list of its shareholders to the Exchange Agent. After the Effective Timetransmittal, there shall be no further transfer of Certificates on the records of Company, and if such Certificates are presented to Company for transfer, they shall be canceled against delivery of the Per Share Merger Consideration. Parent shall not be obligated to deliver any Per Share Merger Consideration to any holder of Company Common Stock until such holder surrenders the Certificates as provided herein. No dividends declared will be remitted, nor any voting rights granted, to any person entitled to receive Parent Common Stock under this Agreement until such person surrenders the Certificate (i) one or more certificates representing the right to receive such Parent Common Stock, at which time such dividends on number of whole shares of Parent Common Stock with a record date on or after into which the Effective Time shares represented by the Company Certificate(s) shall be remitted to such person, without interest and less any taxes that may have been imposed thereonconverted pursuant to Section 1.3(a), (ii) a bank check in the amount of cash into which the shares represented by the Company Certificate(s) shall have been converted pursuant to Section 1.5(f) (relating to fractional shares), and voting rights will be restored. Certificates surrendered for exchange by (iii) any person constituting an “affiliate” of Company for purposes of Rule 144 under the Securities Act of 1933, as amendeddividends or other distributions to which such holder is entitled pursuant to Section 1.5(c), and the rules and regulations thereunder (the “Securities Act”Company Certificate(s) shall not be exchanged for certificates representing Parent Common Stock until Parent has received a written agreement from such person as specified in Section 6.2(e). Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof so surrendered shall be liable to any holder of Company Common Stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Parent and the Exchange Agent shall be entitled to rely upon the stock transfer books of Company to establish the identity of those persons entitled to receive consideration specified in this Agreement, which books shall be conclusive with respect theretocanceled. In the event of a dispute with respect to transfer of ownership of stock represented by any Certificate, Company Common Stock that is not registered in the Exchange Agent shall be entitled to deposit any consideration in respect thereof in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(vi) If any Per Share Merger Consideration is to be issued to a person other than a person in whose name a surrendered Certificate is registeredtransfer records of the Company, it shall be a condition to the issuance of issuance shares of Parent Common Stock that the Company Certificate(s) so surrendered Certificate shall be properly endorsed or be otherwise in proper form for transfer and that the person requesting such issuance transferee shall (i) pay to the Exchange Agent any required transfer or other taxes required or (ii) establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicablepayable.
(viic) Holders of Company Common Stock will be entitled to any dividends or other distributions pertaining to the Parent Common Stock received in exchange therefor that become payable to persons who are holders of record of Parent Common Stock as of a record date that follows the Effective Time, but only after they have surrendered their Company Certificates for exchange. Subject to the effect, if any, of applicable law, the Exchange Agent shall receive, hold, and remit any such dividends or other distributions to each such record holder entitled thereto, without interest, at the time that such Company Certificates are surrendered to the Exchange Agent for exchange. Holders of Company Common Stock will not be entitled, however, to dividends or other distributions that become payable before or after the Effective Time to persons who were holders of record of Parent Common Stock as of a record date that is prior to the Effective Time.
(d) All certificates evidencing shares of Parent Common Stock that are issued upon the surrender for exchange of Company Certificates in accordance with the terms hereof, together with any cash paid for fractional shares pursuant to Section 1.5(f) hereof, shall be deemed to have been issued in full satisfaction of all rights pertaining to the shares of Company Common Stock represented by the surrendered Company Certificates.
(e) After the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Certificates representing such shares are presented to the Surviving Corporation, they shall be canceled and exchanged as provided in this Article 1. As of the Effective Time, the holders of Company Certificates representing shares of Company Common Stock shall cease to have any rights as stockholders of the Company, except such rights, if any, as they may have pursuant to the DGCL or this Agreement. Except as provided above, until such Company Certificates are surrendered for exchange, each such Company Certificate shall, after the Effective Time, represent for all purposes only the right to receive a certificate or certificates evidencing the number of whole shares of Parent Common Stock into which the shares of Company Common Stock shall have been converted pursuant to the Merger as provided in Section 1.3(a) hereof, the right to receive the cash value of any fraction of a share of Parent Common Stock as provided in Section 1.5(f) hereof and the right to receive any dividends or distributions as provided in Section 1.5(c).
(f) No fractional shares of Parent Common Stock and no certificates or scrip therefor, or other evidence of ownership thereof, shall be issued in connection with the Merger, no dividend or other distribution of Parent shall relate to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a shareholder of Parent. All fractional shares of Parent Common Stock to which a holder of Company Common Stock immediately prior to the Effective Time would otherwise be entitled, at the Effective Time, shall be aggregated if and to the extent multiple Company Certificates of such holder are submitted together to the Exchange Agent. If a fractional share results from such aggregation, then (in lieu of such fractional share) the Exchange Agent shall pay to each holder of shares of Company Common Stock who otherwise would be entitled to receive such fractional share of Parent Common Stock an amount of cash (without interest) determined by multiplying (i) the closing sale price of a share of Parent Common Stock as reported on the NYSE Composite Tape, as reported in The Wall Street Journal, on the Closing Date by (ii) the fractional share of Parent Common Stock to which such holder would otherwise be entitled. Parent will make available to the Exchange Agent any cash necessary for this purpose.
(g) In the event any Certificate Company Certificates shall have been lost, stolen stolen, or destroyed, the Exchange Agent shall issue in respect of such lost, stolen, or destroyed Company Certificates, upon the making of an affidavit of that fact by the holder thereof, such shares of Parent Common Stock, cash for fractional shares, if any, and dividends or other distributions, if any, as may be required pursuant to this Article 1; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen stolen, or destroyed Company Certificate shall to deliver to the Exchange Agent an affidavit stating such fact, in form satisfactory to Parent, and, at Parent’s discretion, a bond in such reasonable sum as the Exchange Agent Parent may reasonably direct as indemnity against any claim that may be made against Parent or Company or its successor or any other party the Exchange Agent with respect to the such Company Certificate alleged to have been lost, stolen stolen, or destroyed. Upon such delivery.
(h) The parties hereto acknowledge that each certificate representing a share of Parent Common Stock issued pursuant to this Article 1 will, the owner shall have the right to receive the Per Share Merger Consideration with respect pursuant to the shares represented by Rights Agreement dated as of June 27, 1991, between Parent and Norwest Bank Minnesota, N.A. (the lost"Parent Rights Plan"), stolen or destroyed Certificatealso represent the number of Parent preferred share purchase rights associated with one share of Parent Common Stock at the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Medtronic Inc)
