Exchange of Company Stock Certificates. Promptly after the Effective Time, the Paying Agent will mail to the Persons who were record holders of Company Stock Certificates immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company (including provisions confirming that delivery of Company Stock Certificates shall be effected, and that risk of loss of, and title to, Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Paying Agent and releasing all claims against the Company and its officers and directors); and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for Merger Consideration. Upon surrender of a Company Stock Certificate to the Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Paying Agent or Parent: (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor the cash consideration that such holder has the right to receive pursuant to the provisions of Section 2.6, in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; and (B) the Company Stock Certificate so surrendered shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares is registered if, to the satisfaction of Parent, any such Company Stock Certificate shall be delivered to Paying Agent, is accompanied by all documents required to evidence and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.10, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration as contemplated by Section 2.6. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery of any Merger Consideration with respect to the shares of Company Common Stock previously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably appropriate affidavit and to deliver a bond (in such reasonable sum as Parent may direct) as indemnity against any claim that may be made against the Paying Agent, Parent, Merger Sub or the Surviving Corporation with respect to such Company Stock Certificate. No interest shall be paid or will accrue on any cash payable to holders of Company Stock Certificates pursuant to the provisions of this Section 2.10.
Appears in 7 contracts
Samples: Merger Agreement (Aml Communications Inc), Merger Agreement (Aml Communications Inc), Merger Agreement (Aml Communications Inc)
Exchange of Company Stock Certificates. (a) On or prior to the Closing Date, Parent shall select Parent’s transfer agent (after consultation with the Company) or another reputable bank or trust company reasonably acceptable to the Company to act as exchange agent in the Merger (the “Exchange Agent”) and enter into an exchange agent agreement, in customary form, with the Exchange Agent. Prior to or substantially concurrently with the Effective Time, Parent shall cause to be deposited with the Exchange Agent: (a) certificates or book entry positions representing the shares of Parent Common Stock issuable pursuant to Section 1.5(a)(iii); and (b) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(c). The Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to the deposited shares of Parent Common Stock pursuant to Section 1.7(d) are referred to collectively as the “Exchange Fund.” The cash portion of the Exchange Fund will be held by the Exchange Agent and not invested.
(b) Promptly after the Effective Time, the Paying Exchange Agent will mail to the Persons who who, as of the Effective Time, were record holders of Company Stock Certificates immediately prior to the Effective TimeCertificates: (i) a notice advising such holder of the effectiveness of the Merger; (ii) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company (including provisions a provision confirming that delivery of a Company Stock Certificates shall Certificate will be effected, and that risk of loss of, and title to, to such Company Stock Certificates shall Certificate will pass, only upon proper delivery of such Company Stock Certificates Certificate) and reasonably acceptable to the Paying Agent and releasing all claims against each of Parent, the Company and its officers and directors)the Exchange Agent; and (iiiii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for Merger Consideration. Upon surrender of a Company Stock Certificate to the Paying Exchange Agent for exchange, together with the delivery of a duly executed letter of transmittal and such other customary documents as may be reasonably required by the Paying Exchange Agent or Parent: in connection with the surrender of such Company Stock Certificate, (A) Parent shall cause the Exchange Agent to issue the number of whole shares of Parent Common Stock, if any, that the holder (or such holder’s transferee in accordance with Section 1.7(e)) of such Company Stock Certificate shall be is entitled to receive pursuant to Section 1.5(a)(iii) in exchange therefor therefor, in non-certificated book-entry form in the name of such holder (or such holder’s transferee in accordance with Section 1.7(e)), and to mail to such Person, as promptly as reasonably practicable thereafter, (1) a statement reflecting the number of whole shares of Parent Common Stock so issued and (2) a check in the amount (after giving effect to any required Tax withholdings as provided in Section 1.7(i)) of any cash consideration in lieu of fractional shares plus any unpaid dividends or distributions that such holder Person has the right to receive pursuant to the provisions of Section 2.6Sections 1.5(c) and 1.7(d), in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; as applicable, and (B) the Company Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration as contemplated by Section 1.5.
(c) Any holder of Uncertificated Company Shares will not be required to deliver a Company Stock Certificate or an executed letter of transmittal to the Exchange Agent to receive the Merger Consideration with respect to such Uncertificated Company Shares. Upon receipt of an “agent’s message” in customary form (it being understood that holders of Uncertificated Company Shares will be deemed to have transferred such Uncertificated Company Shares upon receipt of an “agent’s message” or such other evidence, if any, as the Exchange Agent may reasonably request) after the Effective Time with respect to such holder (or such holder’s transferee in accordance with Section 1.7(e)), (A) Parent shall cause the Exchange Agent to (1) issue the number of whole shares of Parent Common Stock, if any, that such holder (or such holder’s transferee in accordance with Section 1.7(e)) is entitled to receive pursuant to Section 1.5(a)(iii) in exchange therefor, in non-certificated book-entry form in the name of such holder (or such holder’s transferee in accordance with Section 1.7(e)), and (2) mail to such Person, as promptly as reasonably practicable thereafter, (x) a statement reflecting the number of whole shares of Parent Common Stock so issued and (y) a check in the amount (after giving effect to any required Tax withholdings as provided in Section 1.7(i)) of any cash in lieu of fractional shares plus any unpaid dividends or distributions that such Person has the right to receive pursuant to Sections 1.5(c) and 1.7(d), as applicable, and (B) the Uncertificated Company Shares so transferred shall be canceled. The Exchange Agent shall accept transferred Uncertificated Company Shares upon compliance with such reasonable instructions as the Exchange Agent may impose to cause an orderly exchange thereof in accordance with customary exchange practices. Until transferred as contemplated by this Section 1.7(c), each Uncertificated Company Share shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration as contemplated by Section 1.5.
(d) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate or Uncertificated Company Share, in each case with respect to the Parent Common Stock that such holder has the right to receive in the Merger, until such holder surrenders such Company Stock Certificate or Uncertificated Company Share in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable escheat or similar laws, to receive all such dividends and distributions, without interest).
(e) In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares or Uncertificated Company Shares is registered if, to the satisfaction of Parent, : (i) any such Company Stock Certificate shall be delivered is properly endorsed or otherwise in proper form for transfer; and (ii) such holder has paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Merger Consideration to Paying Agent, is accompanied by all documents required a Person other than such holder (or has established to evidence the reasonable satisfaction of Parent that such bonds and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.10, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration as contemplated by Section 2.6. ).
(f) If any Company Stock Certificate shall have been is lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery payment of any Merger Consideration with respect to the shares of Company Common Stock previously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably an appropriate affidavit and to deliver a bond (in a reasonable and customary amount and upon such reasonable sum terms as Parent may direct) reasonably be required as indemnity against any claim that may be made against the Paying Exchange Agent, Parent, Merger Sub Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(g) Any portion of the Exchange Fund that remains undistributed to former holders of shares of Company Common Stock as of the date that is 180 days after the date on which the Merger becomes effective will be delivered to Parent upon demand, and any former holders of shares of Company Common Stock who have not theretofore surrendered their Company Stock Certificates, or complied with the procedures established by the Exchange Agent for transfer of Uncertificated Company Shares, in accordance with this Section 1.7 shall thereafter look only to Parent for satisfaction of their claims for Merger Consideration.
(h) If any Company Stock Certificate has not been surrendered, or any Uncertificated Company Share has not been transferred, by the earlier of (i) the fifth anniversary of the date on which the Merger becomes effective and (ii) the date immediately prior to the date on which the Merger Consideration that such Company Stock Certificate or Uncertificated Company Share represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such Merger Consideration shall, to the extent permitted by applicable Legal Requirements, become the property of Parent, free and clear of any claim or interest of any Person previously entitled thereto. No interest None of Parent, the Surviving Corporation or the Exchange Agent shall be paid liable to any holder or will accrue on any cash payable to holders former holder of Company Common Stock Certificates or to any other Person with respect to any Merger Consideration properly delivered to any public official pursuant to any applicable abandoned property law, escheat law or similar Legal Requirement.
(i) Each of the provisions Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock or Company Equity Award such amounts as are required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts will be timely paid over to the appropriate Governmental Body and will be treated for all purposes under this Section 2.10Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
Appears in 2 contracts
Samples: Merger Agreement (Momentive Global Inc.), Merger Agreement (Momentive Global Inc.)
Exchange of Company Stock Certificates. Promptly (a) As soon as reasonably practicable (and in any event within three Business Days) after the Delaware Merger Effective Time, the Paying Exchange Agent will mail to the Persons who who, as of immediately prior to the Delaware Merger Effective Time, were record holders of Company Stock Certificates immediately prior to the Effective Timeand Uncertificated Company Shares: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company (including provisions a provision confirming that delivery of a Company Stock Certificates shall Certificate or transfer of an Uncertificated Company Share will be effected, and that risk of loss of, and title to, to such Company Stock Certificates shall Certificate or such Uncertificated Company Share will pass, only upon proper delivery of such Company Stock Certificates Certificate or transfer of such Uncertificated Company Share to the Paying Agent and releasing all claims against the Company and its officers and directorsExchange Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or transfer of Uncertificated Company Shares in exchange for Delaware Merger Consideration. Upon surrender of a Company Stock Certificate to the Paying Exchange Agent for exchangeexchange (or compliance with the reasonable procedures established by the Exchange Agent for transfer of Uncertificated Company Shares), together with the delivery of a duly executed letter of transmittal and such other documents as may be reasonably required by the Paying Exchange Agent or Parent: (A) HoldCo, the holder of such Company Stock Certificate shall or Uncertificated Company Shares will be entitled to receive in exchange therefor the cash consideration Delaware Merger Consideration that such holder has the right to receive pursuant to the provisions of Section 2.61.7, in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; Certificate or Uncertificated Company Shares and (B) the Company Stock Certificate or Uncertificated Company Shares so surrendered shall or transferred will be canceled. Until surrendered or transferred as contemplated by this Section 1.11(a), each Company Stock Certificate and Uncertificated Company Share shall be deemed, from and after the Delaware Merger Effective Time, to represent only the right to receive Delaware Merger Consideration as contemplated by Section 1.7(c).
(b) No dividends or other distributions declared or made with respect to HoldCo Common Stock with a record date after the Delaware Merger Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate or to the holder of any Uncertificated Company Share that has not been transferred, in each case with respect to the HoldCo Common Stock that such holder has the right to receive in the Delaware Merger, until such holder surrenders such Company Stock Certificate or transfers such Uncertificated Company Share in accordance with this Section 1.11 (at which time such holder shall be entitled, subject to the effect of applicable escheat or similar laws, to receive all such dividends and distributions, without interest).
(c) In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Delaware Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares or Uncertificated Company Shares is registered if, to the satisfaction of Parent, : (i) any such Company Stock Certificate shall be delivered is properly endorsed or otherwise in proper form for transfer; and (ii) such holder has paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the payment of such Delaware Merger Consideration to Paying Agent, is accompanied by all documents required a Person other than such holder (or has established to evidence the reasonable satisfaction of HoldCo that such bonds and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.10, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration as contemplated by Section 2.6. ).
(d) If any Company Stock Certificate shall have been is lost, stolen or destroyed, Parent HoldCo may, in its discretion and as a condition precedent to the delivery payment of any Delaware Merger Consideration with respect to the shares of Company Common Stock previously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably an appropriate affidavit and to deliver a bond (in such reasonable sum as Parent HoldCo may direct) as indemnity against any claim that may be made against the Paying Exchange Agent, Parent, Merger Sub HoldCo or the Surviving Delaware Corporation with respect to such Company Stock Certificate. No interest shall will be paid or will accrue on any cash consideration payable to holders of Company Stock Certificates or in respect of Uncertificated Company Shares pursuant to Section 1.7.
(e) Any portion of the provisions Exchange Fund that remains undistributed to former holders of shares of Company Common Stock as of the date that is 365 days after the date on which the Delaware Merger becomes effective will be delivered to HoldCo upon demand, and any former holders of shares of Company Common Stock who have not theretofore surrendered their Company Stock Certificates, or complied with the procedures established by the Exchange Agent for transfer of Uncertificated Company Shares, in accordance with this Section 2.101.11 may thereafter look only to HoldCo for satisfaction of their claims for Delaware Merger Consideration and any dividends or distributions with respect to the shares of HoldCo Common Stock included in the Delaware Merger Consideration.
(f) If any Company Stock Certificate has not been surrendered, or any Uncertificated Company Share has not been transferred, by the earlier of (i) the fifth anniversary of the date on which the Delaware Merger becomes effective and (ii) the date immediately prior to the date on which the Delaware Merger Consideration that such Company Stock Certificate or Uncertificated Company Share represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such Delaware Merger Consideration will, to the extent permitted by applicable Legal Requirements, become the property of HoldCo, free and clear of any claim or interest of any Person previously entitled thereto. None of HoldCo, the Surviving Bermuda Company, the Surviving Delaware Corporation or the Exchange Agent will be liable to any holder or former holder of Company Common Stock or to any other Person with respect to any Delaware Merger Consideration (or dividends or distributions with respect to shares of HoldCo Common Stock included in the Delaware Merger Consideration) delivered to any public official pursuant to any applicable abandoned property law, escheat law or similar Legal Requirement.
(g) Each of the Exchange Agent, HoldCo, the Surviving Bermuda Company and the Surviving Delaware Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock or any Marvell Common Share, Company Equity Award or Marvell Equity Award such amounts as are required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and paid over to the appropriate Governmental Body, such amounts will be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (INPHI Corp), Merger Agreement (Marvell Technology Group LTD)
Exchange of Company Stock Certificates. (a) Prior to the Closing Date, Parent shall select ChaseMellon Shareholder Services or another reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, Parent shall deposit with the Paying Exchange Agent (i) certificates representing the number of shares of Parent Common Stock to be issued to the Company Stockholders in the Merger and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively herein as the "Exchange Fund."
(b) As soon as practicable after the Effective Time, the Exchange Agent will mail to the Persons who were record registered holders of Company Stock Certificates immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company (including provisions a provision confirming that delivery of Company Stock Certificates shall be effected, and that risk of loss of, and title to, to Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Paying Agent and releasing all claims against the Company and its officers and directorsExchange Agent); , and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for Merger Considerationcertificates representing Parent Common Stock. Upon Subject to Section 1.5(d), upon surrender of a Company Stock Certificate to the Paying Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Paying Agent or Parent: Exchange Agent, (Ai) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing the cash consideration number of whole shares of Parent Common Stock that such holder has the right to receive pursuant to the provisions of Section 2.6this Article 1, in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; and (Bii) the Company Stock Certificate so surrendered shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares is registered if, to the satisfaction of Parent, any such Company Stock Certificate shall be delivered to Paying Agent, is accompanied by all documents required to evidence and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.101.7, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration upon such surrender a certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by Section 2.6this Article 1. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery issuance of any Merger Consideration with respect to the shares of Company certificate representing Parent Common Stock previously represented by such Company Stock CertificateStock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably an appropriate affidavit and to deliver a bond (in such reasonable sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Paying Exchange Agent, Parent, Merger Sub Parent or the Surviving Corporation with respect to such Company Stock Certificate. .
(c) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or will accrue on to the holder of any cash payable to holders of unsurrendered Company Stock Certificates pursuant Certificate with respect to the provisions shares of this Section 2.10.Parent Common Stock represented thereby, and no cash payment in lieu of any fractional share shall be paid to any such holder, until such holder surrenders such Company Stock Certificate in accordance with
Appears in 2 contracts
Samples: Merger Agreement (Gene Logic Inc), Merger Agreement (Oncormed Inc)
Exchange of Company Stock Certificates. Promptly after the Effective Time, the Paying Agent will mail to the Persons who were record holders of Company Stock Certificates (other than the Excluded Shares) or holders of shares of Company Common Stock in book entry form immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company mutually agree (including provisions confirming that delivery of shares of Company Common Stock Certificates shall be effected, and that risk of loss of, and title to, such Company Common Stock Certificates shall pass, only upon delivery of such the Company Stock Certificates (or evidence of shares in book entry form) to the Paying Agent and releasing all claims against the Company and its officers and directors); and (ii) instructions for use in effecting the surrender of Company Stock Certificates (or evidence of shares in book entry form) in exchange for Merger Considerationcash consideration that such holder has the right to receive pursuant to the provisions of Section 2.6. Upon surrender of a Company Stock Certificate (or evidence of shares in book entry form) to the Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may reasonably be reasonably required by the Paying Agent or ParentAgent: (A) the holder of such Company Stock Certificate (or holder of shares of Company Common Stock in book entry form) shall be entitled to receive in exchange therefor the cash consideration that such holder has the right to receive pursuant to the provisions of Section 2.6, in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock CertificateCertificate (or book entry); and (B) the Company Stock Certificate (or book entry) so surrendered shall be marked canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate (or shares of Company Common Stock in book entry) formerly representing such shares is registered if, to the satisfaction of Parent, any such Company Stock Certificate (or evidence of shares in book entry form) shall be delivered to Paying Agent, is accompanied by all documents required to evidence and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.10, each Company Stock Certificate and book entry relating to a share of Company Common Stock shall be deemed, from and after the Effective Time, to represent only the right to receive the portion of the Merger Consideration as contemplated by Section 2.62.6(b). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery of any Merger Consideration with respect to the shares of Company Common Stock previously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably appropriate affidavit that such Company Stock Certificate is lost, stolen or destroyed and to deliver a bond (in such reasonable sum as Parent may direct) as indemnity against any claim that may be made against the Paying Agent, Parent, Merger Sub or the Surviving Corporation with respect to such Company Stock Certificate. No interest shall be paid or will accrue on any cash payable to holders of Company Stock Certificates (or holders of shares of Company Common Stock in book entry) pursuant to the provisions of this Section 2.10. Under no circumstances shall the holder of any Rights Certificate be entitled to any payment or distribution with respect thereto, and the holders thereof shall have no further rights in connection therewith, pursuant to the terms of this Agreement and the Rights Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Evans Hugh D), Merger Agreement (Anaren Inc)
Exchange of Company Stock Certificates. (a) Promptly after the Effective Time, the Paying Agent will mail Parent shall cause to the Persons who were record holders be mailed to each holder of Outstanding Company Stock Certificates immediately prior to the Effective Time: (i) Shares a letter of transmittal in customary form and containing such provisions as Parent may reasonably (which shall specify and as are reasonably acceptable to the Company (including provisions confirming that delivery of Company Stock Certificates shall be effected, and that risk of loss of, and title to, to the Company Stock Certificates shall pass, only upon proper delivery of such the Company Stock Certificates to the Paying Agent Parent) and releasing all claims against instructions for surrender of the Company and its officers and directors); and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for Merger ConsiderationCertificates. Upon surrender to Parent of a Company Stock Certificate to the Paying Agent for exchangeCertificate(s), together with a duly executed letter of transmittal duly executed and such other documents a Lock-up Agreement (as may be reasonably required by the Paying Agent or Parent: (A) defined in Section 2.8 below),, the holder of such Outstanding Company Stock Certificate Shares shall be entitled to receive in exchange therefor therefor: (i) a certificate for Parent Common Stock (a "Parent Certificate") evidencing the cash consideration that such holder has the right to receive pursuant whole number of shares of Parent Common Stock equal to the provisions Adjusted Stock Consideration multiplied by the number of Section 2.6, Outstanding Company Shares held by such holder; (ii) cash in full satisfaction of all rights pertaining an amount equal to the shares Cash Consideration multiplied by the number of Outstanding Company Common Stock formerly represented Shares held by such Company Stock Certificateholder; and (Biii) cash in lieu of fractional shares as provided in Section 2.4. No Parent Certificate will be issued to a Person (as defined in Section 2.10) who is not the registered owner of a surrendered Company Certificate, unless (i) the Company Stock Certificate so surrendered has been properly endorsed or otherwise is in proper form for transfer, and (ii) such Person shall be canceled. In the event either (A) pay any transfer or other tax required by reason of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares is registered if, issuance or (B) establish to the satisfaction of Parent, any the Surviving Corporation that such Company Stock Certificate shall be delivered to Paying Agent, is accompanied by all documents required to evidence and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have tax has been paid or are is not applicable. Until surrendered as contemplated by in accordance with the provisions of this Section 2.10, each Company Stock Certificate shall be deemed2.3, from and after the Effective Time, each Company Certificate shall be deemed to represent only represent, for all purposes other than payment of dividends declared or accrued prior to the Effective Time, the right to receive Merger Consideration a certificate representing the number of full shares of Parent Common Stock and the amount of cash as contemplated determined in accordance with this Section 2.3(a) and cash in lieu of fractional shares as provided in Section 2.4, without interest.
(b) The "Adjusted Stock Consideration" shall be that number of shares of Parent Common Stock equal to the quotient obtained by Section 2.6dividing (i) (A) the Base Stock Number less (B) the number of Escrow Shares and (C) less the number of Option Shares by (ii) the Outstanding Company Shares.
(c) No dividend or other distribution declared with respect to Parent Common Stock with a record date after the Effective Time will be paid to holders of Outstanding Company Shares which have not surrendered their Company Certificates until such holders surrender their Company Certificates. If Upon the surrender of such Company Certificates, there shall be paid to such holders, promptly after such surrender, the amount of dividends or other distributions, without interest, declared with a record date after the Effective Time and not paid because of the failure to surrender Company Certificates for exchange.
(d) Notwithstanding anything to the contrary in this Agreement, none of Parent or the Surviving Corporation shall be liable to any holder of Outstanding Company Shares for shares of Parent Common Stock, cash or cash in lieu of fractional shares delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(e) In the event that any Company Stock Certificate Certificates shall have been lost, stolen or destroyed, Parent shall issue and pay in respect of such lost, stolen or destroyed Company Certificates, upon the making of an affidavit of that fact by the holder thereof, a Parent Certificate evidencing full shares of Parent Common Stock, cash in accordance with Section 2.3(a) and cash in lieu of fractional shares, if any, as provided in section 2.4, and any dividends or distributions payable hereunder; provided, however, that Parent may, in its discretion and as a condition precedent to the delivery of any Merger Consideration with respect to the shares of Company Common Stock previously represented by such Company Stock Certificateissuance thereof, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably appropriate affidavit and to deliver a bond (in such reasonable sum as Parent it may direct) reasonably direct as indemnity against any claim that may be made against the Paying Agent, Parent, Merger Sub or the Surviving Corporation Parent with respect to such the Company Stock Certificate. No interest shall be paid Certificates alleged to have been lost, stolen or will accrue on any cash payable to holders of Company Stock Certificates pursuant to the provisions of this Section 2.10destroyed.
Appears in 1 contract
Exchange of Company Stock Certificates. Promptly (a) On the Closing Date (as defined in Section 2.4 hereof) and after ----------- the Effective Time, each Stockholder of the Paying Agent will mail Company shall surrender and deliver to Parent the Persons who were record holders of Company Stock Certificates immediately certificates owned by such Stockholder which, prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company (including provisions confirming that delivery , evidenced outstanding shares of Company Stock Certificates shall be effectedCommon Sock (other than Dissenting Shares) (collectively, and that risk of loss of, and title to, the "Company Stock Certificates shall passCertificates"), only upon delivery of such Company Stock Certificates to the Paying Agent and releasing all claims against the Company and its officers and directors); and (ii) instructions for use duly -------------------------- endorsed in effecting the surrender of Company Stock Certificates in exchange for Merger Considerationblank. Upon surrender of a Company Stock Certificate to the Paying Agent for exchangeCertificate, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Paying Agent or Parent: (A) the holder of such Company Stock Certificate shall thereof will be entitled to receive in exchange therefor therefore such holder's pro rata share of the cash consideration that Aggregate Merger Consideration due to such holder has at the right to receive pursuant to Effective Time (the provisions of Section 2.6"Stockholder Consideration"), in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; and (B) the Company Stock Certificate so ------------------------- surrendered shall will be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are that is not registered in the transfer records of the Company, payment of Merger the Stockholder Consideration may be made paid to a Person other than the holder Person in whose name the surrendered Company Stock Certificate formerly representing such shares is registered if, to if the satisfaction of Parent, any such Company Stock Certificate shall be delivered representing such Company Common Stock is presented to Paying Agent, is Parent accompanied by all documents required to evidence and effect such transfer and by evidence is provided reasonably satisfactory to Paying Agent Parent that any applicable Transfer Taxes stock transfer tax has been paid. If any Stockholder Consideration is to be paid to a Person other than the Person in whose name the Company Stock Certificates surrendered in exchange therefore are registered, it will be a condition to the delivery of such Stockholder Consideration that the Company Stock Certificates so surrendered are properly endorsed or accompanied by appropriate stock powers and are otherwise in proper form for transfer, that such transfer otherwise is proper and that the Person requesting such transfer pay to Parent any transfer or other taxes payable by reason of the foregoing or establish to the satisfaction of Parent that such taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.10, each Company Stock Certificate shall required to be deemed, from and after paid.
(b) After the Effective Time, each outstanding Company Stock Certificate will, until surrendered for exchange in accordance with this Section 2.2, be deemed for all purposes to represent only evidence the right to receive Merger the ----------- Stockholder Consideration as contemplated by Section 2.6. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery respect of any Merger Consideration with respect to the shares of Company Common Stock previously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably appropriate affidavit and to deliver a bond (in such reasonable sum as Parent may direct) as indemnity against any claim that may be made against the Paying Agent, Parent, Merger Sub or the Surviving Corporation with respect to such Company Stock Certificate. No interest shall be paid or will accrue on any cash payable to holders of Company Stock Certificates pursuant to the provisions of this Section 2.10.
Appears in 1 contract
Samples: Merger Agreement (Paladyne Corp)
Exchange of Company Stock Certificates. (a) Prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, Parent shall deposit with the Paying Exchange Agent (i) certificates representing the shares of Parent Common Stock issuable pursuant to this Section 1 and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the "Exchange Fund."
(b) As soon as practicable after the Effective Time, the Exchange Agent will mail to the Persons who were record registered holders of Company Stock Certificates immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company (including provisions a provision confirming that delivery of Company Stock Certificates shall be effected, and that risk of loss of, and title to, to Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Paying Agent and releasing all claims against the Company and its officers and directorsExchange Agent); , and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for Merger Considerationcertificates representing Parent Common Stock. Upon Subject to Section 1.5(d), upon surrender of a Company Stock Certificate to the Paying Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Paying Exchange Agent or Parent: , (A1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing the cash consideration number of shares of Parent Common Stock that such holder has the right to receive pursuant to the provisions of Section 2.61.5(a)(iii), in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; and (B2) the Company Stock Certificate so surrendered shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares is registered if, to the satisfaction of Parent, any such Company Stock Certificate shall be delivered to Paying Agent, is accompanied by all documents required to evidence and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.101.7(b), each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by Section 2.61. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery issuance of any Merger Consideration with respect to the shares of Company certificate representing Parent Common Stock previously represented by such Company Stock CertificateStock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably an appropriate affidavit and to deliver a bond (in such reasonable sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Paying Exchange Agent, Parent, Merger Sub Parent or the Surviving Corporation with respect to such Company Stock Certificate. .
(c) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or will accrue on to the holder of any cash payable unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be entitled to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed to holders of Company Stock Certificates on the first anniversary of the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates who have not theretofore surrendered their Company Stock Certificates in accordance with Section 1.7(b) shall thereafter look only to Parent for satisfaction of their claims for Parent Common Stock, cash in lieu of fractional shares of Parent Common Stock and any dividends or distributions with respect to Parent Common Stock.
(e) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the provisions Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Section 2.10Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Company Stock Certificates. Promptly (a) The parties to this Agreement agree: (i) that Computershare Trust Company, N.A. shall serve, pursuant to customary terms of an exchange agent agreement, as the exchange agent for purposes of this Agreement (the “Exchange Agent”); and (ii) to execute and deliver the exchange agent agreement at or prior to the Effective Time. Nicolet shall be solely responsible for the payment of any fees and expenses of the Exchange Agent.
(b) At or prior to the Effective Time, Nicolet shall authorize the issuance of and shall make available to the Exchange Agent, for the benefit of the holders of Company Common Stock for exchange in accordance with this Article 2: (i) a sufficient number of shares of Nicolet Common Stock and cash for payment of the Merger Consideration pursuant to Section 2.1, and (ii) sufficient cash for payment of cash in lieu of any fractional shares of Nicolet Common Stock in accordance with Section 2.5. Such amount of cash and shares of Nicolet Common Stock, together with any dividends or distributions with respect thereto paid after the Effective Time, are referred to in this Article 2 as the Paying “Conversion Fund.”
(c) Within five (5) Business Days after the Closing Date, Nicolet shall cause the Exchange Agent will to mail to the Persons who were each holder of record holders of one or more certificates or evidence of book-entry representing such shares of Company Common Stock Certificates immediately prior (the “Company Stock Certificates”) who did not tender such Company Stock Certificate(s) on or before the Election Deadline pursuant to Section 2.3 the Effective Time: (i) a letter of transmittal in and other appropriate and customary form and containing such provisions as Parent may reasonably transmittal materials (which shall specify and as are reasonably acceptable to the Company (including provisions confirming that delivery of Company Stock Certificates shall be effected, and that risk of loss of, and title to, to the Company Stock Certificates shall pass, only upon proper delivery of such Company Stock Certificates to the Paying Agent and releasing all claims against Exchange Agent) (the Company and its officers and directors); and (ii“Letter of Transmittal”) instructions for use in effecting the surrender of Company Stock Certificates in exchange for Merger Consideration. pursuant to this Agreement.
(d) Upon the later of the Effective Time and proper surrender of a Company Stock Certificate for exchange to the Paying Agent for exchangeExchange Agent, together with a properly completed and duly executed letter Letter of transmittal and such other documents as may be reasonably required by the Paying Agent or Parent: (A) Transmittal, the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor the his, her or its Merger Consideration as allocated per Section 2.3 plus cash consideration that such holder has the right to receive pursuant to the provisions in lieu of any fractional shares of Nicolet Common Stock in accordance with Section 2.6, 2.5 deliverable in full satisfaction respect of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; and (B) the thereupon such Company Stock Certificate so surrendered shall forthwith be cancelled.
(e) No interest will be paid or accrued on any portion of the Merger Consideration deliverable upon surrender of a Company Stock Certificate.
(f) After the Effective Time, there shall be canceledno transfers of Outstanding Company Shares on the stock transfer books of the Company.
(g) No dividends or other distributions declared with respect to Nicolet Common Stock and payable to the holders of record thereof after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate until the holder thereof shall surrender such Company Stock Certificate in accordance with this Article 2. In Promptly after the event surrender of a transfer Company Stock Certificate in accordance with this Article 2, the record holder thereof shall be entitled to receive any such dividends or other distributions, without interest thereon, which theretofore had become payable with respect to shares of ownership of any Nicolet Common Stock into which the shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the represented by such Company Stock Certificate formerly representing such shares is registered if, were converted at the Effective Time pursuant to the satisfaction Section 2.1. No holder of Parent, any such an unsurrendered Company Stock Certificate shall be delivered entitled, until the surrender of such Company Stock Certificate, to Paying Agent, is accompanied by all documents required to evidence and effect vote the shares of Nicolet Common Stock into which such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes holder’s Company Common Stock shall have been paid or are not applicable. Until surrendered as contemplated converted.
(h) Any portion of the Conversion Fund that remains unclaimed by this Section 2.10, each the holders of Outstanding Company Stock Certificate shall be deemed, from and Shares twelve (12) months after the Effective TimeTime shall be paid to the Surviving Entity, or its successors in interest. Any holders of Outstanding Company Shares who have not theretofore complied with this Article 2 shall thereafter look only to represent only the right Surviving Entity, or its successors in interest, for issuance of Nicolet Common Stock and/or cash pursuant to receive the Merger Consideration and the payment of cash in lieu of any fractional shares deliverable in respect of such shareholders’ shares of Company Common Stock, as contemplated by Section 2.6well as any accrued and unpaid dividends or distributions on shares of such Nicolet Common Stock. If Notwithstanding the foregoing, none of the Surviving Entity, the Exchange Agent or any other person shall be liable to any holders of Outstanding Company Shares for any amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws.
(i) In the event any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to upon the delivery making of any Merger Consideration with respect to an affidavit of that fact by the shares of Company Common Stock previously represented by person claiming such Company Stock Certificate, require the owner of such Certificate to be lost, stolen or destroyed Company Stock Certificate to provide a reasonably appropriate affidavit and to deliver and, if required by the Surviving Entity, the posting by such person of a bond (in such reasonable sum amount as Parent the Exchange Agent may direct) determine is reasonably necessary as indemnity against any claim that may be made against the Paying Agent, Parent, Merger Sub or the Surviving Corporation it with respect to such Company Stock Certificate. No interest , the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificate, and in accordance with this Article 2, shares of Nicolet Common Stock and/or cash pursuant to the Merger Consideration and cash in lieu of any fractional shares deliverable in respect thereof pursuant to this Agreement.
(j) If, between the date of this Agreement and the Effective Time, the outstanding shares of Nicolet Common Stock shall have been changed into a different number of shares or into a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Merger Consideration per share shall be paid or will accrue on any cash payable adjusted appropriately to provide the holders of Company Common Stock Certificates pursuant the same economic effect as contemplated by this Agreement prior to the provisions of this Section 2.10such event.
Appears in 1 contract
Exchange of Company Stock Certificates. (a) Prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, Parent shall deposit with the Paying Exchange Agent (i) certificates representing the shares of Parent Common Stock issuable pursuant to this Section 1 and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the "Exchange Fund."
(b) As soon as practicable after the Effective Time, the Exchange Agent will mail to the Persons who were record registered holders of Company Stock Certificates immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company (including provisions a provision confirming that delivery of Company Stock Certificates shall be effected, and that risk of loss of, and title to, to Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Paying Agent and releasing all claims against the Company and its officers and directorsExchange Agent); , and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for Merger Considerationcertificates representing Parent Common Stock. Upon Subject to Section 1.5(d), upon surrender of a Company Stock Certificate to the Paying Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Paying Exchange Agent or Parent: , (A1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing the cash consideration number of shares of Parent Common Stock that such holder has the right to receive pursuant to the provisions of Section 2.61.5(a)(iii), in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; and (B2) the Company Stock Certificate so surrendered shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares is registered if, to the satisfaction of Parent, any such Company Stock Certificate shall be delivered to Paying Agent, is accompanied by all documents required to evidence and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.101.7(b), each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by contemplated
Section 2.61. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery issuance of any Merger Consideration with respect to the shares of Company certificate representing Parent Common Stock previously represented by such Company Stock CertificateStock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably an appropriate affidavit and to deliver a bond (in such reasonable sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Paying Exchange Agent, Parent, Merger Sub Parent or the Surviving Corporation with respect to such Company Stock Certificate. .
(c) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or will accrue on to the holder of any cash payable unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be entitled to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed to holders of Company Stock Certificates on the first anniversary of the date on which the Merger becomes effective shall be delivered to Parent upon demand, and any holders of Company Stock Certificates who have not theretofore surrendered their Company Stock Certificates in accordance with Section 1.7(b) shall thereafter look only to Parent for satisfaction of their claims for Parent Common Stock, cash in lieu of fractional shares of Parent Common Stock and any dividends or distributions with respect to Parent Common Stock.
(e) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the provisions Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Section 2.10Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Company Stock Certificates. (a) Prior to the Closing Date, Parent shall select a reputable bank or trust company (reasonably satisfactory to the Company) to act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, Parent shall deposit with the Paying Exchange Agent (i) certificates representing the shares of Parent Common Stock issuable pursuant to this Section 1 and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the "Exchange Fund."
(b) As soon as practicable after the Effective Time, the Exchange Agent will mail to the Persons who were record registered holders of Company Stock Certificates immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company (including provisions a provision confirming that delivery of Company Stock Certificates shall be effected, and that risk of loss of, and title to, to Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Paying Agent and releasing all claims against the Company and its officers and directorsExchange Agent); , and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for Merger Considerationcertificates representing Parent Common Stock. Upon Subject to Section 1.5(d), upon surrender of a Company Stock Certificate to the Paying Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Paying Exchange Agent or Parent: , (A1) the holder of such Company Stock Certificate shall be entitled to receive immediately in exchange therefor a certificate representing the cash consideration number of shares of Parent Common Stock that such holder has the right to receive pursuant to the provisions of Section 2.61.5(a)(iii), in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; and (B2) the Company Stock Certificate so surrendered shall be marked "canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares is registered if, to the satisfaction of Parent, any such Company Stock Certificate shall be delivered to Paying Agent, is accompanied by all documents required to evidence and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have been paid or are not applicable. ." Until surrendered as contemplated by this Section 2.101.7, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by Section 2.61.6. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery issuance of any Merger Consideration with respect to the shares of Company certificate representing Parent Common Stock previously represented by such Company Stock CertificateStock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably an appropriate affidavit and to deliver a bond (in such reasonable sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Paying Exchange Agent, Parent, Merger Sub Parent or the Surviving Corporation with respect to such Company Stock Certificate. .
(c) No interest dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or will accrue on to the holder of any cash payable to holders of unsurrendered Company Stock Certificates pursuant Certificate with respect to the provisions shares of this Section 2.10.Parent Common Stock represented thereby, until such holder surrenders such Company
Appears in 1 contract
Exchange of Company Stock Certificates. (a) Promptly after the Effective Time, the Paying Agent will mail Parent shall cause to the Persons who were record holders be mailed to each holder of Outstanding Company Stock Certificates Shares immediately prior to the Effective Time: (i) Time a letter of transmittal in customary form and containing such provisions as Parent may reasonably (which shall specify and as are reasonably acceptable to the Company (including provisions confirming that delivery of Company Stock Certificates shall be effected, and that risk of loss of, and title to, to the Company Stock Certificates shall pass, only upon proper delivery of such the Company Stock Certificates to Parent) along with the Paying Agent Stockholder Acknowledgments and releasing all claims against Agreements (as defined in Section 5.6) and instructions for surrender of the Company and its officers and directors); and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for Merger ConsiderationCertificates. Upon surrender to Parent of a Company Stock Certificate to the Paying Agent for exchangeCertificate(s), together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Paying Agent or Parent: (A) the holder of such Company Stock Certificate thereof shall be entitled to receive in exchange therefor the cash consideration payable in respect thereof provided for in this Agreement, at the times provided for herein. Holders that such holder has the right have not already done so shall return to receive pursuant to the provisions of Section 2.6, in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by Parent along with such Company Stock Certificate(s) fully executed Stockholder Acknowledgments and Agreements as required hereunder. No Merger Consideration will be issued to a Person (as defined in Section 2.11) who is not the registered owner of a surrendered Company Certificate; , unless (i) the Company Certificate so surrendered has been properly endorsed or otherwise is in proper form for transfer, and (ii) such Person shall either (A) pay any transfer or other tax required by reason of such issuance or (B) the Company Stock Certificate so surrendered shall be canceled. In the event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a Person other than the holder in whose name the Company Stock Certificate formerly representing such shares is registered if, establish to the satisfaction of Parent, any Parent that such Company Stock Certificate shall be delivered to Paying Agent, is accompanied by all documents required to evidence and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have tax has been paid or are is not applicable. Until surrendered as contemplated by in accordance with the provisions of this Section 2.10, each Company Stock Certificate shall be deemed2.4, from and after the Effective Time, each Company Certificate shall be deemed to represent represent, for all purposes, only the right to receive Merger Consideration the consideration payable in respect of the Outstanding Company Shares formerly represented thereby as contemplated by determined in accordance with Section 2.6. If 2.1, payable at the times provided for therein and without interest.
(b) Notwithstanding anything to the contrary in this Agreement, neither Parent nor the Surviving Corporation shall be liable to any holder of Outstanding Company Shares for cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(c) In the event that any Company Stock Certificate Certificates shall have been lost, stolen or destroyed, Parent shall issue and pay in respect of such lost, stolen or destroyed Company Certificates, upon the making of an affidavit of that fact by the holder thereof, at the times provided therein, the consideration payable in respect thereof in accordance with Section 2.1; provided, however, that Parent may, in its discretion and as a condition precedent to the delivery of any Merger Consideration with respect to the shares of Company Common Stock previously represented by such Company Stock Certificateissuance thereof, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a reasonably appropriate affidavit and to deliver a bond (in such reasonable sum amount as Parent it may direct) reasonably direct as indemnity against any claim that may be made against the Paying Agent, Parent, Merger Sub or the Surviving Corporation Parent with respect to such the Company Stock Certificate. No interest shall be paid Certificates alleged to have been lost, stolen or will accrue on any cash payable to holders of Company Stock Certificates pursuant to the provisions of this Section 2.10destroyed.
Appears in 1 contract
Samples: Merger Agreement (Illumina Inc)
Exchange of Company Stock Certificates. Promptly (a) The Parties to this Agreement agree: (i) that Wxxxx Fargo Shareowner Services or another bank or trust company designated by Buyer and reasonably acceptable to the Company shall serve, pursuant to customary terms of an exchange agent agreement (the “Exchange Agent Agreement”), as the exchange agent for purposes of this Agreement (the “Exchange Agent”); and (ii) to execute and deliver the Exchange Agent Agreement at or prior to the Effective Time.
(b) At or prior to the Effective Time, Buyer shall authorize the issuance of and shall make available to the Exchange Agent, for the benefit of the holders of Company Common Stock for exchange in accordance with this Article III: (i) a sufficient number of shares of Buyer Common Stock for payment of the Merger Consideration pursuant to Section 3.1, and (ii) sufficient cash for payment of cash in lieu of any fractional shares of Buyer Common Stock in accordance with Section 3.5. Such amount of cash and shares of Buyer Common Stock, together with any dividends or distributions with respect thereto paid after the Effective Time, are referred to as the Paying “Conversion Fund.”
(c) Within five (5) business days after the Closing Date, Buyer shall cause the Exchange Agent will to mail to the Persons who were each holder of record holders of one or more certificates representing such shares of Company Common Stock Certificates immediately prior to (the Effective Time: (i“Company Stock Certificates”) a letter of transmittal in and other appropriate and customary form and containing such provisions as Parent may reasonably transmittal materials (which shall specify and as are reasonably acceptable to the Company (including provisions confirming that delivery of Company Stock Certificates shall be effected, and that risk of loss of, and title to, to the Company Stock Certificates shall pass, only upon proper delivery of such Company Stock Certificates to the Paying Agent and releasing all claims against the Company and its officers and directors); and (iiExchange Agent) instructions for use in effecting the surrender of Company Stock Certificates pursuant to this Agreement.
(d) No interest will be paid or accrued on any portion of the Merger Consideration deliverable upon surrender of a Company Stock Certificate.
(e) After the Effective Time, there shall be no transfers of Company Common Stock (or rights related thereto) on the stock transfer books of the Company.
(f) No dividends or other distributions declared with respect to Buyer Common Stock and payable to the holders of record thereof after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate until the holder thereof shall surrender such Company Stock Certificate in exchange for Merger Considerationaccordance with this Article III. Upon Promptly after the surrender of a Company Stock Certificate to in accordance with this Article III, the Paying Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Paying Agent or Parent: (A) the record holder of such Company Stock Certificate thereof shall be entitled to receive in exchange therefor the cash consideration that any such holder has the right dividends or other distributions, without interest thereon, which theretofore had become payable with respect to receive pursuant to the provisions shares of Section 2.6, in full satisfaction of all rights pertaining to Buyer Common Stock into which the shares of Company Common Stock formerly represented by such Company Stock Certificate; and Certificate were converted at the Effective Time pursuant to Section 3.1.
(Bg) Any portion of the Conversion Fund that remains unclaimed by the shareholders of the Company Stock Certificate so surrendered twelve (12) months after the Effective Time shall be canceledpaid to the Surviving Corporation, or its successors in interest. In Any shareholders of the event Company who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation, or its successors in interest, for issuance of a transfer Buyer Common Stock and/or cash pursuant to the Merger Consideration and the payment of ownership cash in lieu of any fractional shares deliverable in respect of such shareholders’ shares of Company Common Stock, as well as any accrued and unpaid dividends or distributions on shares of such Buyer Common Stock. Notwithstanding the foregoing, none of the Surviving Corporation, the Exchange Agent or any other person shall be liable to any former holder of shares of Company Common Stock which are not registered for any amount delivered in the transfer records of the Company, payment of Merger Consideration may be made good faith to a Person other than public official pursuant to applicable abandoned property, escheat or similar laws.
(h) In the holder in whose name the Company Stock Certificate formerly representing such shares is registered if, to the satisfaction of Parent, any such Company Stock Certificate shall be delivered to Paying Agent, is accompanied by all documents required to evidence and effect such transfer and evidence is provided to Paying Agent that any applicable Transfer Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.10, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive Merger Consideration as contemplated by Section 2.6. If event any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to upon the delivery making of any Merger Consideration with respect to an affidavit of that fact by the shares of Company Common Stock previously represented by person claiming such Company Stock Certificate, require the owner of such Certificate to be lost, stolen or destroyed Company Stock Certificate to provide a reasonably appropriate affidavit and to deliver and, if required by the Surviving Corporation, the posting by such person of a bond (in such reasonable sum amount as Parent the Exchange Agent may direct) determine is reasonably necessary as indemnity against any claim that may be made against the Paying Agent, Parent, Merger Sub or the Surviving Corporation it with respect to such Company Stock Certificate. No interest , the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificate, and in accordance with this Article III, shares of Buyer Common Stock pursuant to the Merger Consideration and cash in lieu of any fractional shares deliverable in respect thereof pursuant to this Agreement.
(i) If, between the date of this Agreement and the Effective Time, the outstanding shares of Buyer Common Stock shall have been changed into a different number of shares or into a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Merger Consideration per share shall be paid or will accrue on any cash payable adjusted appropriately to provide the holders of Company Common Stock Certificates pursuant the same economic effect as contemplated by this Agreement prior to the provisions of this Section 2.10such event.
Appears in 1 contract
Samples: Merger Agreement (Bank Mutual Corp)
