Exchange of Shares. (a) Prior to the Acceptance Time, Buyer shall appoint a bank or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment of the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company. (b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock contemplated to be issued pursuant to Section 2.01(b). (c) In the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f). (d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Common Stock held by the Exchange Agent from time to time hereunder. (e) None of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto. (f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Exchange of Shares. (a) Prior to the Acceptance Time, Buyer The Exchange Agent shall appoint a bank or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be in the depositary pursuant to Merger. Promptly after the Offer, the “Exchange Agent”) for the payment of the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration First Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, deposit (or cause to be deposited, ) with the Exchange Agent, within two (2) Business Days after Agent evidence of book-entry shares representing the Acceptance Time, in trust for the benefit of the holders of Parent Common Stock Payment Shares validly tendered and not properly withdrawn Parent Preferred Stock Payment Shares issuable pursuant to the Offer as of the Acceptance TimeSection 1.6(a)(ii). For clarity, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and such book-entry shares shall deposit, and shall cause to be deposited, not include any Holdback Shares. The evidence deposited with the Exchange Agent, at such time, evidence Agent of Parent Common Stock in book-entry form (or certificates shares representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash Payment Shares and Parent Common StockPreferred Stock Payment Shares, together with any dividends or distributions received by the Exchange Agent with respect thereto to such Parent Common Stock Payment Shares and Parent Preferred Stock Payment Shares after the aggregate Fractional Share Cash AmountFirst Effective Time, are referred to collectively as the “Exchange Fund.”
(b) Promptly after the First Effective Time, the Parties shall cause the Exchange Agent to send to the Persons who were record holders of shares of Company Common Stock that were converted into the right to receive the Merger Consideration: (i) a letter of transmittal in substantially the form attached hereto as Exhibit B (the “Letter of Transmittal”); and (ii) instructions for effecting the surrender of Company Stock Certificates or transfer of Book-Entry Shares in exchange for Parent Common Stock Payment Shares and Parent Preferred Stock Payment Shares. The Notwithstanding the foregoing sentence, at or prior to the Closing, Parent shall cause the Exchange Agent shall, pursuant to irrevocable deliver to the Company the form of Letter of Transmittal and such instructions, deliver and the Company or its representatives may send such form of Letter of Transmittal and such instructions to any Person who, immediately prior to the First Effective Time, is a record holder of shares of Company Common Stock that are or will be converted into the right to receive the Merger Consideration at the First Effective Time. Upon delivery at any time after the First Effective Time by the holder of any Company Stock Certificate or Book-Entry Share to the Exchange Agent of a duly executed Letter of Transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent, together with, if applicable, any such Company Stock Certificate: (A) such holder shall be entitled to receive, in exchange for such Company Stock Certificate or Book-Entry Share, book-entry shares representing the number of whole shares of Parent Common Stock contemplated and Parent Convertible Preferred Stock that such holder has the right to be issued receive pursuant to the provisions of Section 2.01(b1.6(a)(ii).
; and (cB) In the event that the PostCompany Stock Certificate or Book-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, Entry Share so surrendered or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Saletransferred, as the case may be, in trust for shall be canceled. Until surrendered or transferred as contemplated by this Section 1.8(b), each Company Stock Certificate or Book-Entry Share shall be deemed, from and after the benefit of First Effective Time, to represent only the Minority Shareholders, evidence of Parent Common Stock in right to receive book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) shares representing the number of whole shares of Parent Common Stock sufficient and Parent Convertible Preferred Stock that such holder has the right to deliver receive pursuant to the number provisions of shares Section 1.6(a)(ii) and the right to receive any other Merger Consideration that such holder has the right to receive pursuant to this Agreement. 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 in respect of the share of Company Common Stock represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an applicable affidavit with respect to such Company Stock Certificate that includes an obligation of such owner to indemnify Parent against any claim suffered by Parent related to the lost, stolen or destroyed Company Stock Certificate as Parent may reasonably request. Payment of the Merger Consideration in respect of any Company Stock Certificate or Book-Entry Share may be made to a Person other than the Person in whose name such Company Stock Certificate or Book-Entry Share so surrendered or transferred in accordance with this Section 1.8 is registered under the stock books or records of the Company immediately prior to the First Effective Time if such Company Stock Certificate or Book-Entry Shares shall be properly endorsed or otherwise be in proper form for transfer in accordance with Section 1.7 and this Section 1.8 and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the transfer or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable. Each Person that is entitled to receive Parent Common Stock and/or Parent Convertible Preferred Stock shall have the right to which become party to the Minority Shareholders become entitled Registration Rights Agreement as a “Holder” by executing a counterpart signature to such agreement. The Merger Consideration and any dividends or other distributions as are payable pursuant to Section 1.8(c) shall be deemed to have been in full satisfaction of all rights pertaining to Company Common Stock formerly represented by such Company Stock Certificates or Book-Entry Shares.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock or Parent Convertible Preferred Stock with a record date on or after the Second Step Distribution First Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate or untransferred Book-Entry Shares with respect to the Parent Common Stock Payment Shares and/or Parent Preferred Stock Payment Shares that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or transfers such Book-Entry Shares or provides an affidavit of loss or destruction in lieu thereof in accordance with this Section 1.8 (together at which time (or, if later, on the applicable payment date) such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains unclaimed by holders of shares of Company Common Stock as of the date that is one year after the Closing Date shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book-Entry Shares who have not theretofore surrendered their Company Stock Certificates or transferred their Book-Entry Shares in accordance with this Section 1.8 shall thereafter look only to Parent for satisfaction of their claims for Parent Common Stock Payment Shares and Parent Preferred Stock Payment Shares, and any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Payment Shares and Parent Common Preferred Stock held by the Exchange Agent from time to time hereunderPayment Shares.
(e) None of Parent, the Company, Buyer or the Exchange Agent No Party shall be liable to any Person in respect holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, Company Common Stock or to any other Person with respect to any shares in of Parent Common Stock deposited pursuant to Section 2.13(cor Parent Convertible Preferred Stock (or dividends or distributions with respect thereto) and delivered pursuant to Section 2.13(f) and or for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration amounts delivered to a any public official pursuant to any applicable abandoned propertyproperty Law, escheat Law or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Leap Therapeutics, Inc.)
Exchange of Shares. (a) Prior to As promptly as practicable following the Acceptance TimeClosing Date, Buyer Parent and the Company shall appoint agree upon and select a bank reputable bank, transfer agent or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent in the Merger (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment of the Offer Consideration and Parent shall enter into an exchange agent agreement with the Exchange Agent (the “Exchange Agent Agreement”) relating to ). As promptly as practicable following the First Effective Time, Parent shall deposit with the Exchange Agent’s responsibilities under this Agreement, including Agent certificates or evidence of book-entry shares representing the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered Parent Common Stock and not properly withdrawn Parent Convertible Preferred Stock issuable pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step DistributionSection 1.6(a). The Exchange Agent Agreement shall be in form Parent Common Stock, Parent Convertible Preferred Stock and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, cash amounts so deposited with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions received by the Exchange Agent with respect thereto and the aggregate Fractional Share Cash Amountto such shares, are referred to collectively as the “Exchange Fund.”). The
(b) Promptly after the First Effective Time, the Parties shall cause the Exchange Agent shall, to mail or otherwise deliver pursuant to irrevocable instructionsthe Exchange Agent Agreement to the Persons who were record holders of shares of Company Common Stock that were converted into the right to receive the Merger Consideration instructions for effecting the surrender of Company Stock Certificates or transfer of Book-Entry Shares in exchange for Parent Stock Payment Shares. Upon surrender of a Company Stock Certificate or transfer of Book-Entry Share to the Exchange Agent for exchange, deliver together with such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book-Entry Share shall be entitled to receive in exchange therefor book-entry shares representing the Merger Consideration (in a number of whole shares of Parent Common Stock contemplated and Parent Convertible Preferred Stock, as applicable) that such holder has the right to be issued receive, subject to Section 1.6(b), pursuant to the provisions of Section 2.01(b1.6(a).
; and (cB) In the event that the PostCompany Stock Certificate or Book-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, Entry Share so surrendered or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Saletransferred, as the case may be, in trust for shall be canceled. Until surrendered or transferred as contemplated by this Section 1.8(b), each Company Stock Certificate or Book-Entry Share shall be deemed, from and after the benefit of First Effective Time, to represent only the Minority Shareholders, evidence of Parent Common Stock in right to receive book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient and/or Parent Convertible Preferred Stock, as applicable, representing the Merger Consideration. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to deliver the number delivery of any shares of Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an applicable affidavit with respect to such Company Stock Certificate that includes an obligation of such owner to indemnify Parent against any claim suffered by Parent related to the lost, stolen or destroyed Company Stock Certificate as Parent may reasonably request. In the event of a transfer of ownership of a Book-Entry Share that is not registered in the transfer records of the Company, payment of the Merger Consideration in respect of such Company Stock Certificate or Book-Entry Share may be made to a Person other than the Person in whose name such Company Stock Certificate or Book-Entry Share so surrendered or transferred is registered if such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the transfer or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable. The Merger Consideration and any dividends or other distributions as are payable pursuant to Section 1.8(c) shall be deemed to have been in full satisfaction of all rights pertaining to Company Common Stock formerly represented by such Company Stock Certificates or Book-Entry Shares.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock to which and/or Parent Convertible Preferred Stock, as applicable, with a record date on or after the Minority Shareholders become entitled pursuant First Effective Time shall be paid to the Second Step Distribution holder of any unsurrendered Company Stock Certificate or untransferred Book-Entry Shares with respect to the shares of Parent Common Stock and/or Parent Convertible Preferred Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or transfers such Book-Entry Shares or provides an affidavit of loss or destruction in lieu thereof in accordance with this Section 1.8 (together at which time (or, if later, on the applicable payment date) such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains unclaimed by holders of shares of Company Common Stock as of the date that is one year after the Closing Date shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book-Entry Shares who have not theretofore surrendered their Company Stock Certificates or transferred their Book-Entry Shares in accordance with this Section 1.8 shall thereafter look only to Parent for satisfaction of their claims for Parent Common Stock and/or Parent Convertible Preferred Stock, as applicable, and any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the and/or Parent Common Stock held by the Exchange Agent from time to time hereunderConvertible Preferred Stock, as applicable.
(e) None of Parent, the Company, Buyer or the Exchange Agent No Party shall be liable to any Person in respect holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, Company Common Stock or to any other Person with respect to any shares in of Parent Common Stock deposited pursuant to Section 2.13(cand/or Parent Convertible Preferred Stock, as applicable (or dividends or distributions with respect thereto) and delivered pursuant to Section 2.13(f) and or for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration amounts delivered to a any public official pursuant to any applicable abandoned propertyproperty Law, escheat Law or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Samples: Merger Agreement (Baudax Bio, Inc.)
Exchange of Shares. (a) Prior to As soon as practicable after the Acceptance Effective Time, Buyer and in no event more than five business days thereafter, the Exchange Agent shall appoint mail to each holder of record of Certificates or Book-Entry Shares, a bank or trust company selected with the prior written approval letter of transmittal mutually acceptable to Parent and the Company (such approval not to which shall specify that delivery shall be unreasonably withheldeffected, delayed or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant and risk of loss and title to the OfferCertificates or Book-Entry Shares shall pass, the “Exchange Agent”) for the payment only upon delivery of the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating Certificates or Book-Entry Shares to the Exchange Agent’s responsibilities under this Agreement, including ) and instructions for use in effecting the delivery, following the Expiration Time, surrender of the Offer Consideration Certificates or Book-Entry Shares in exchange for the Merger Consideration. Upon surrender of a Certificate or Book-Entry Share for exchange and cancellation to the holders Exchange Agent, together with a properly executed letter of Shares validly tendered and not properly withdrawn transmittal, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor a check representing the amount of cash which such holder has the right to receive in respect of the Certificate or Book-Entry Share surrendered pursuant to the Offer as provisions of the Acceptance TimeArticle I, and the implementation Certificate or Book-Entry Shares so surrendered shall forthwith be cancelled. No interest will be paid or accrued on the Merger Consideration to holders of Company Common Stock. Parent shall instruct the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to timely pay the CompanyMerger Consideration following the receipt of a properly submitted letter of transmittal.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates If any check representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Merger Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock contemplated is to be issued pursuant in a name other than that in which the Certificate or Book-Entry Shares surrendered in exchange therefor is registered, it shall be a condition of the issuance thereof that the Certificate or Book-Entry Shares so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer), with signature guaranteed as the letter of transmittal shall specify, and otherwise in proper form for transfer, and that the person requesting such exchange shall pay to Section 2.01(b)the Exchange Agent in advance any transfer or other Taxes (as hereinafter defined) required by reason of the issuance of a check representing Merger Consideration in any name other than that of the registered holder of the Certificate or Book-Entry Shares surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(c) In After the event that Effective Time, there shall be no transfers on the Poststock transfer books of the Company of the shares of Company Common Stock which were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, or cause Entry Shares representing such shares are presented for transfer to be deposited, with the Exchange Agent, immediately after they shall be cancelled and exchanged for the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share SaleConsideration, as the case may be, provided in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f)this Article II.
(d) The Any portion of the Exchange Agent Fund that remains unclaimed by the shareholders of the Company for 12 months after the Effective Time shall be returned to Parent. Any shareholders of the Company who have not be entitled theretofore complied with this Article II shall thereafter look only to vote or exercise any rights Parent for payment of ownership with the Merger Consideration, deliverable in respect to the Parent of each share of Company Common Stock held by such shareholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the Exchange Agent from time to time hereunder.
(e) None foregoing, none of Parent, the Company, Buyer or the Exchange Agent or any other person shall be liable to any Person in respect former holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Company Common Stock deposited pursuant for any amount delivered in good faith to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding laws.
(e) In the event any other provision Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such person of a bond in such amount as Parent may reasonably direct (not exceeding the Merger Consideration deliverable with respect to such Certificate) as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent or Parent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof pursuant to this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed subject to the holders last sentence of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental AuthoritySection 2.2(d), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated Each of Parent and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent shall be entitled to deduct and withhold (without duplication) from the Merger Consideration otherwise payable to any holder of shares of Company Common Stock or otherwise pursuant to this Agreement such amounts as Parent or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under the United States Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign tax law. Any amounts that are so deducted and withheld shall be paid over to the appropriate taxing authority by Parent or the Exchange Agent and shall be treated for all purposes of this Agreement as having been paid to the person in writing respect of which such deduction and withholding was made. Notwithstanding the foregoing, (i) the number of shares in Parent Common Stock each holder that is to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled receive a payment pursuant to this Agreement will have the Second Step Distribution sole and exclusive responsibility for the satisfaction and payment of any such withholding tax obligations imposed on Parent by any Governmental Entity (prior to giving effect to any Tax withholdingas hereinafter defined) on account of such payment and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required no distribution will be made to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount or on behalf of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) holder pursuant to this Agreement unless and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions until such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant holder has made arrangements satisfactory to the Parent Common Stock Sale and the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds payment and satisfaction of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)tax obligations.
Appears in 1 contract
Exchange of Shares. (a) Prior As soon as practicable after the Effective Time, and in no event more than three business days thereafter, the Exchange Agent shall mail to each holder of record of Certificates or Book-Entry Shares who theretofore has not submitted such holder’s Certificate or evidence of Book-Entry Shares with a properly completed Election Form, a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Acceptance TimeCertificates or Book-Entry Shares shall pass, Buyer shall appoint a bank or trust company selected with the prior written approval only upon delivery of the Company (such approval not to be unreasonably withheld, delayed Certificates or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment of the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating Book-Entry Shares to the Exchange Agent’s responsibilities under this Agreement, including ) and instructions for use in effecting the delivery, following the Expiration Time, surrender of the Offer Consideration Certificates or Book-Entry Shares in exchange for the Merger Consideration. The Company shall have the right to review both the letter of transmittal and the instructions prior to the holders of Shares validly tendered Effective Time and not properly withdrawn pursuant to the Offer as provide reasonable comments thereon. After completion of the Acceptance Time, allocation procedure set forth in Section 1.5 and the implementation upon surrender of the Second Step Distribution. The Exchange Agent Agreement shall be in form a Certificate or Book-Entry Share for exchange and substance reasonably satisfactory cancellation to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit together with a properly executed letter of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Timetransmittal, the aggregate Fractional holder of such Certificate or Book-Entry Share Cash Amount payable shall be entitled to receive in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, exchange therefor (x) a certificate or evidence of Parent Common Stock in bookBook-entry form (or certificates Entry Share representing such Parent Common Stock, at Parent’s election) representing the that number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock contemplated which such holder of Company Common Stock became entitled to be issued receive pursuant to Section 2.01(b)the provisions of Article I hereof and/or (y) a check representing the aggregate Per Share Cash Consideration and/or the amount of cash in lieu of fractional shares, if any, which such holder has the right to receive in respect of the Certificate or Book-Entry Share surrendered pursuant to the provisions of Article I, and the Certificate or Book-Entry Shares so surrendered shall forthwith be cancelled. No interest will be paid or accrued on the Per Share Cash Consideration, the cash in lieu of fractional shares or the unpaid dividends and distributions, if any, payable to holders of Certificates or Book-Entry Shares.
(b) No dividends or other distributions declared after the Effective Time with respect to Parent Common Stock and payable to the holders of record thereof shall be paid to the holder of any unsurrendered Certificate or Book-Entry Shares until the holder thereof shall surrender such Certificate or Book-Entry Shares in accordance with this Article II. After the surrender of a Certificate or Book-Entry Shares in accordance with this Article II, the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to shares of Parent Common Stock represented by such Certificate or Book-Entry Shares.
(c) In If any certificate representing shares of Parent Common Stock is to be issued in a name other than that in which the event Certificate or Book-Entry Shares surrendered in exchange therefor is registered, it shall be a condition of the issuance thereof that the PostCertificate or Book-Offer Reorganization is effectuated the Buyer shallEntry Shares so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and Parent that the person requesting such exchange shall cause Buyer to, deposit, or cause pay to be deposited, with the Exchange Agent, immediately after the effectuation Agent in advance any transfer or other taxes required by reason of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit issuance of the Minority Shareholders, evidence a certificate representing shares of Parent Common Stock in bookany name other than that of the registered holder of the Certificate or Book-entry form Entry Shares surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Company of the shares of Company Common Stock which were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book-Entry Shares representing such shares are presented for transfer to the Exchange Agent, they shall be cancelled and exchanged for certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the number of shares or cash or both, as provided in Parent Common Stock to which the Minority Shareholders become entitled pursuant this Article II.
(e) Notwithstanding anything to the Second Step Distribution (together with any dividends contrary contained herein, no certificates or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such scrip representing fractional shares of Parent Common Stock contemplated to shall be issued upon the surrender for exchange of Certificates or Book-Entry Shares, 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 owner thereof to vote or to any other rights of a shareholder of Parent. In lieu of the issuance of any such fractional share, Parent shall pay to each former shareholder of the Company who otherwise would be entitled to receive a fractional share of Parent Common Stock an amount in cash determined by multiplying (i) the average of the closing sale prices of Parent Common Stock on the NASDAQ Stock Market as reported by The Wall Street Journal for the five trading days immediately preceding the date on which the Effective Time shall occur by (ii) the fraction of a share of Parent Common Stock which such holder would otherwise be entitled to receive pursuant to Section 2.13(f)1.4 hereof.
(df) The Any portion of the Exchange Agent Fund that remains unclaimed by the shareholders of the Company for 12 months after the Effective Time shall be returned to Parent. Any shareholders of the Company who have not be entitled theretofore complied with this Article II shall thereafter look only to vote or exercise any rights Parent for payment of ownership with respect to the Merger Consideration, the cash in lieu of fractional shares and/or the unpaid dividends and distributions on the Parent Common Stock held by deliverable in respect of each share of Company Common Stock such shareholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the Exchange Agent from time to time hereunder.
(e) None foregoing, none of Parent, the Company, Buyer or the Exchange Agent or any other person shall be liable to any Person in respect former holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Company Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration amount properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled theretolaws.
(fg) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Post-Offer Reorganization is effectuated and the Second Step Distribution is implementedperson claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the Buyer and the Company shall jointly advise, posting by such person of a bond in accordance such amount as Parent may reasonably direct as indemnity against any claim that may be made against it with Section 5.07respect to such Certificate, the Exchange Agent will issue in writing of (i) exchange for such lost, stolen or destroyed Certificate the number of shares Merger Consideration deliverable in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled respect thereof pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)Agreement.
Appears in 1 contract
Samples: Merger Agreement (Tower Bancorp Inc)
Exchange of Shares. (a) Prior On or prior to the Acceptance TimeClosing Date, Buyer Parent and the Company shall appoint have agreed upon and selected a bank reputable bank, transfer agent or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent in the Merger (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) ). At the First Effective Time, Parent shall arrange with the Exchange Agent for the payment issuance of the Offer Consideration book-entry shares representing Parent Common Stock and Parent Convertible Preferred Stock issuable pursuant to Section 1.6(a)(ii)(A), and shall enter into an agreement (deposit with the “Exchange Agent Agreement”) relating such amount as is necessary to make the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distributioncash payments contemplated in Section 1.6(a)(ii)(B). The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, Any Parent Common Stock and Parent shall cause Buyer to, deposit, or cause to be deposited, with Convertible Preferred Stock so issued for payment by the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be any cash so deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions received by the Exchange Agent with respect thereto and the aggregate Fractional Share Cash Amountto such shares, are referred to collectively as the “Exchange Fund.”). The
(b) As soon as reasonably practicable after the CVR Record Date, but no earlier than the first Business Day thereafter, the Exchange Agent shall, shall issue book-entry shares representing the Merger Consideration that each holder of Company Common Stock has the right to receive pursuant to irrevocable instructionsthe provisions of Section 1.6(a)(ii)(A) and each Company Stock Certificate or Book-Entry Share formerly held by each such holder shall be deemed, deliver such whole from and after the First Effective Time, to represent only the right to receive book-entry shares of Parent Common Stock and Parent Convertible Preferred Stock representing the Merger Consideration (or, if applicable, the cash amounts contemplated to in Section 1.6(a)(ii)(B)) and, following issuance of book-entry shares representing the Merger Consideration, shall be issued canceled. The Merger Consideration, any cash deposited in the Exchange Fund, and any dividends or other distributions as are payable pursuant to Section 2.01(b)1.8(c) shall be deemed to have been in full satisfaction of all rights pertaining to Company Capital Stock formerly represented by such Company Stock Certificates or Book- Entry Shares.
(c) In the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, No dividends or cause other distributions declared or made with respect to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in bookor Parent Convertible Preferred Stock with a record date on or after the First Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate or Book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing Entry Shares with respect to the number of shares of Parent Common Stock sufficient or Parent Convertible Preferred Stock that such holder has the right to deliver receive in the number Merger until such holder surrenders such Company Stock Certificate or transfers such Book-Entry Shares or provides an affidavit of loss or destruction in lieu thereof in accordance with this Section 1.8 (at which time (or, if later, on the applicable payment date) such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and distributions, without interest); provided, however, that in no event shall holders of Company Capital Stock receiving the Merger Consideration be entitled to receive any CVR in respect of their shares in of Company Capital Stock, Parent Common Stock Payment Shares or Parent Preferred Stock Payment Shares.
(d) Any portion of the Exchange Fund that remains unclaimed by holders of shares of Company Capital Stock as of the date that is one year after the Closing Date shall be delivered to which the Minority Shareholders become entitled pursuant Parent upon demand, and any holders of Company Stock Certificates or Book- Entry Shares who have not theretofore surrendered their Company Stock Certificates or transferred their Book-Entry Shares in accordance with this Section 1.8 shall thereafter look only to the Second Step Distribution (together with Parent as general creditors for satisfaction of their claims for Parent Common Stock and Parent Convertible Preferred Stock and any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the and Parent Common Stock held by the Exchange Agent from time to time hereunderConvertible Preferred Stock.
(e) None of Parent, the Company, Buyer or the Exchange Agent No Party shall be liable to any Person in respect holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, Company Capital Stock or to any other Person with respect to any shares in of Parent Common Stock deposited pursuant to Section 2.13(cor Parent Convertible Preferred Stock (or dividends or distributions with respect thereto) and delivered pursuant to Section 2.13(f) and or for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration amounts delivered to a any public official pursuant to any applicable abandoned propertyproperty Law, escheat Law or similar Law. Notwithstanding any other provision of this Agreement, any Any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 Exchange Fund that remains undistributed to the unclaimed by holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, shares of Company Capital Stock as of the second (2nd) anniversary of date that is two years after the Acceptance Time Closing Date (or immediately prior to such earlier date on which the Offer Consideration related Exchange Funds (and all dividends or such cash other distributions in respect thereof) would otherwise escheat to or become the property of any Governmental Authority), Body) shall, to the extent permitted by applicable Law, become the property of Parentthe Surviving Entity, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Exchange of Shares. (a) Prior to the Acceptance Effective Time, Buyer Parent shall appoint a bank or trust company selected with the prior written approval of an exchange agent reasonably satisfactory to the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment purpose of exchanging Certificates for the Merger Consideration and for paying the Equity Award Amount. As soon as reasonably practicable after the Effective Time, Parent will cause the Exchange Agent to send to each holder of record of shares of Company Common Stock as of the Offer Effective Time whose shares of Company Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 2.6 a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall enter into an agreement (pass, only upon proper delivery of the “Exchange Agent Agreement”) relating Certificates to the Exchange Agent’s responsibilities under this Agreement), including instructions for use in effecting the delivery, following surrender of Certificates to the Expiration Exchange Agent in exchange for the Merger Consideration. Immediately after the Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, deposited with the Exchange AgentAgent cash in U.S. dollars sufficient to pay the aggregate Merger Consideration and the Equity Award Amount, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number each case in trust for each holder of shares of Parent Company Common Stock sufficient and each holder of a Company Stock- Based Award as required to deliver be paid pursuant to this Agreement. All cash deposited with the aggregate Offer Consideration payable Exchange Agent shall be referred to in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, this Agreement as the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock the Merger Consideration and Equity Award Amount contemplated to be issued paid pursuant to Section 2.01(b)2.6 and Section 2.7 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest the cash included in the Exchange Fund as directed by Parent. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by Parent or the Exchange Agent, will be entitled to receive the Merger Consideration in exchange therefor. The Merger Consideration shall be paid as promptly as practicable after receipt by the Exchange Agent of the Certificate and letter of transmittal in accordance with the foregoing. The Equity Award Amount shall be paid, in accordance with instructions from the Company, as promptly as practicable following the Effective Time. No interest shall be paid or accrued on any Merger Consideration. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all purposes only the right to receive such Merger Consideration.
(c) In If any portion of the event Merger Consideration is to be paid to a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition thereof that the Post-Offer Reorganization is effectuated surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Buyer shall, and Parent Person requesting such delivery of the Merger Consideration shall cause Buyer to, deposit, or cause pay to be deposited, with the Exchange Agent, immediately after Agent any required transfer or other similar Taxes or establish to the effectuation satisfaction of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger that such Tax has been paid or is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f)not payable.
(d) The Exchange Agent After the Effective Time, there shall not be entitled no further registration of transfers of shares of Company Common Stock outstanding immediately prior to vote or exercise the Effective Time. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights of ownership with respect to the Parent such shares of Company Common Stock held except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent from time to time hereunderor Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this ARTICLE II.
(e) None Any portion of the Exchange Fund that remains unclaimed by the holders of shares of Company Common Stock one (1) year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged his or her shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.9 prior to that time shall thereafter look only to Parent for delivery of the Merger Consideration in respect of such holder’s shares of Company Common Stock. Notwithstanding the foregoing, none of Parent, the Company, Buyer Merger Sub or the Exchange Agent Company shall be liable to any Person in respect holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Company Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawproperty Laws. Notwithstanding any other provision of this Agreement, any portion of the Offer Any Merger Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the remaining unclaimed by holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as shares of the second (2nd) anniversary of the Acceptance Time (or Company Common Stock immediately prior to such earlier date on which the Offer Consideration or time as such cash amounts would otherwise escheat to or become the property of any Governmental Authority), Entity shall, to the extent permitted by applicable Law, become the property of Parent, Parent free and clear of all any claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Samples: Merger Agreement
Exchange of Shares. (a) Prior to At the Acceptance First Effective Time, Buyer Parent shall appoint a bank or trust company selected deposit with the prior written approval of the Continental Stock Transfer & Trust Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for certificates or evidence of book-entry shares representing the payment of the Offer Consideration Parent Common Stock, Parent Convertible Preferred Stock and shall enter into an agreement (the “Exchange Agent Agreement”) relating to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn Parent Warrants issuable pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step DistributionSection 1.6(b). The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shallParent Common Stock, Parent Convertible Preferred Stock and Parent shall cause Buyer to, deposit, or cause to be deposited, Warrants so deposited with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions received by the Exchange Agent with respect thereto and the aggregate Fractional Share Cash Amountto such shares, are referred to collectively as the “Exchange Fund.”). The
(b) As soon as reasonably practicable after the record date on or after the First Effective Time, the Exchange Agent shall, pursuant to irrevocable instructions, deliver such shall issue (i) book-entry shares representing the Parent Common Stock and Parent Convertible Preferred Stock (in a number of whole shares of Parent Common Stock contemplated and Parent Convertible Preferred Stock) and (ii) certificates representing the Parent Warrants that each holder of Company Common Stock has the right to be issued receive pursuant to the provisions of Section 2.01(b1.6(b), and each Company Stock Certificate or Book-Entry Share formerly held by each such holder shall be deemed, from and after the First Effective Time, to represent only the right to receive book-entry shares of Parent Common Stock and Parent Convertible Preferred Stock and certificates representing Parent Warrants constituting the Merger Consideration and, following issuance of such book-entry shares and certificates representing the Merger Consideration, shall be canceled. The Merger Consideration and any dividends or other distributions as are payable pursuant to (d) shall be deemed to have been in full satisfaction of all rights pertaining to Company Capital Stock formerly represented by such Company Stock Certificates or Book-Entry Shares.
(c) In the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, No dividends or cause other distributions declared or made with respect to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in bookor Parent Convertible Preferred Stock with a record date on or after the First Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate or Book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing Entry Shares with respect to the number of shares of Parent Common Stock sufficient and/or Parent Convertible Preferred Stock that such holder has the right to deliver receive in the number Merger until such holder surrenders such Company Stock Certificate or transfers such Book-Entry Shares or provides an affidavit of loss or destruction in lieu thereof in accordance with this Section 1.8 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains unclaimed by holders of shares of Company Capital Stock as of the date that is one year after the Closing Date shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book-Entry Shares who have not theretofore surrendered their Company Stock Certificates or transferred their Book-Entry Shares in accordance with this Section 1.8 shall thereafter look only to Parent as general creditors for satisfaction of their claims for Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with and Parent Convertible Preferred Stock and any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the and Parent Common Stock held by the Exchange Agent from time to time hereunderConvertible Preferred Stock.
(e) None of Parent, the Company, Buyer or the Exchange Agent No Party shall be liable to any Person in respect holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, Company Capital Stock or to any other Person with respect to any shares in of Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and or Parent Convertible Preferred Stock (or dividends or distributions with respect thereto), Parent Warrants or for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration amounts delivered to a any public official pursuant to any applicable abandoned propertyproperty Law, escheat Law or similar Law. Notwithstanding any other provision of this Agreement, any Any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 Exchange Fund that remains undistributed to the unclaimed by holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, shares of Company Capital Stock as of the second (2nd) anniversary of date that is two years after the Acceptance Time Closing Date (or immediately prior to such earlier date on which the Offer Consideration related Exchange Funds (and all dividends or such cash other distributions in respect thereof) would otherwise escheat to or become the property of any Governmental Authority), Body) shall, to the extent permitted by applicable Law, become the property of Parentthe Surviving Entity, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Samples: Merger Agreement (BiomX Inc.)
Exchange of Shares. (a) Prior to the Acceptance Timemailing to the record holders of capital stock of Avatex entitled to vote at the Stockholders' Meeting, Buyer Avatex shall appoint designate a bank or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent (such exchange agentthe "Exchange Agent") in connection with the Merger. Promptly following the Effective Time, whichAvatex shall take all steps necessary to enable and cause the Exchange Agent to deliver the applicable Merger Consideration as and when certificates for Avatex Shares are properly surrendered in accordance with this Section 2.3 and the provisions of the letter of transmittal referred to in Section 2.3(b) below. Notwithstanding anything herein to the contrary, if practicableNew Avatex Common Stock into which Avatex Shares shall be converted in the Merger, or the Convertible Preferred Stock Alternate Consideration or Series A Preferred Stock Alternate Consideration into which Convertible Preferred Stock Electing Shares or Series A Preferred Stock Electing Shares shall be converted in the Merger, shall also be the depositary pursuant deemed to the Offerhave been received, the “Exchange Agent”) for the payment of the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer issued and/or paid as of the Acceptance Effective Time. No dividends, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, payments or cause to be deposited, other distributions with the Exchange Agent, within two (2) Business Days a record or other applicable determination or payment date after the Acceptance Time, in trust for the benefit Effective Time with respect to shares of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent New Avatex Common Stock, at Parent’s electionor, if applicable, 6.75% Notes or Deferred Contingent Cash Rights, shall be paid to the holder of any unsurrendered stock certificate previously representing Avatex Shares (in any such case, a "Certificate") representing the number of with respect to which shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent New Avatex Common Stock, together with any dividends or, if applicable, Convertible Preferred Stock Alternate Consideration or distributions with respect thereto and Series A Preferred Stock Alternate Consideration, shall be issuable in the aggregate Fractional Share Cash AmountMerger until such Certificate shall be surrendered for exchange as provided herein, but (i) upon such surrender there shall be paid, without interest, to the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver person in whose name the Certificates representing such whole shares of Parent Common Stock contemplated to be issued pursuant to Section 2.01(b).
(c) In the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent New Avatex Common Stock, at Parent’s election) representing or, if applicable, 6.75% Notes or Deferred Contingent Cash Rights, shall be issued the number amount of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with any dividends dividends, payments or other distributions theretofore paid with respect to such Parent shares of New Avatex Common Stock). The Exchange Agent shall, or, if applicable, 6.75% Notes or Deferred Contingent Cash Rights, as of any record or other applicable determination or payment date subsequent to the Effective Time (but prior to such surrender) and the amount of any cash payable to such person in lieu of fractional shares of New Avatex Common Stock, pursuant to irrevocable instructions this Section 2.3, and (ii) at the appropriate payment date or as soon as practicable thereafter, there shall be paid to such person the amount of Buyer dividends, payments or other distributions with a record or other applicable determination date after the Effective Time but prior to such surrender and the Company (a payment date subsequent to such surrender payable with respect to such shares of New Avatex Common Stock, or, if the Legal Merger is effectuatedapplicable, the Allotting Entity)6.75% Notes or Deferred Contingent Cash Rights, deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise subject in any rights of ownership with respect to the Parent Common Stock held by the Exchange Agent from time to time hereunder.
(e) None of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant case to any applicable abandoned property, escheat or similar Law. Notwithstanding any laws.
(b) Promptly after the Effective Time, Avatex shall cause the Exchange Agent to mail to each former record holder of Avatex Shares (other provision than holders of this AgreementConvertible Preferred Stock Electing Shares and Series A Preferred Stock Electing Shares), any portion a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass only upon proper delivery of the Offer Consideration Certificates to the Exchange Agent, and shall contain or request any information that Avatex may reasonably require) and instructions for use in effecting the cash surrender of the Certificates.
(c) Upon surrender to be paid the Exchange Agent of a Certificate, together with such letter of transmittal and, if applicable, a Form of Election, duly executed and completed in accordance with this Article 2 remains undistributed to the holders instructions thereto, and such other documents as may be requested, the holder of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), Certificate shall, following the Effective Time, be entitled to receive in exchange therefor the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax Consideration deliverable in respect of the Second Step Distribution that is required Avatex Shares formerly evidenced by such Certificate or Certificates (together with any cash in lieu of fractional shares of New Avatex Common Stock, if applicable, pursuant to Section 2.3(e)) and any other amounts payable pursuant to Section 2.3(a) hereof, and such Certificate or Certificates shall forthwith be withheld cancelled. Until surrendered in accordance with the provisions of this Section 2.3, each Certificate shall represent for all purposes the right to receive the applicable Merger Consideration and remitted the right to receive cash in lieu of fractional shares of New Avatex Common Stock, if applicable, and any other amounts payable pursuant to Section 2.3(a) hereof. If a Certificate or Certificates formerly evidencing more than one Avatex Share shall be surrendered for exchange as provided in this Agreement at one time by the competent Tax authority same holder, (x) certificates representing the number of full shares of New Avatex Common Stock, or, in Euros (the aggregate case of Convertible Preferred Stock Electing Shares or Series A Preferred Stock Electing Shares, the amount of such Dutch dividend withholding Tax in EurosConvertible Preferred Stock Alternate Consideration or Series A Preferred Stock Alternate Consideration, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entityy) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment amount of cash in lieu of fractional shares; provided shares of New Avatex Common Stock, if applicable, and (z) any other amounts payable pursuant to Section 2.3(a) hereof deliverable upon the surrender thereof shall be computed on the basis of the aggregate number of Avatex Shares formerly evidenced by such Certificates so surrendered. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Avatex Shares for any Merger Consideration or any other consideration payable pursuant to this Article II delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(d) If any stock portion of the applicable Merger Consideration is to be delivered to a person other than the person in whose name the Certificate surrendered in exchange thereof is registered, it shall be a condition to the delivery of such certificates representing stock that the Buyer Certificate so surrendered shall be properly endorsed or accompanied by appropriate stock powers and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such transfer pay to the Exchange Agent any transfer or other taxes payable by reason of the foregoing or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not required to be paid.
(e) Notwithstanding anything herein to the contrary, no certificates representing fractional shares of New Avatex Common Stock shall be issued upon the surrender for exchange of Certificates pursuant to this Section 2.3, and no fractional shares of New Avatex Common Stock shall be issued in the Merger. Such fractional share interests shall not entitle the holder thereof to vote or to any rights as a security holder of Avatex or the Surviving Corporation. In lieu of any fractional shares of New Avatex Common Stock, each person who otherwise would have been entitled to receive any such fractional shares shall be entitled to any surplus if receive at the amount thereof time Merger Consideration is de minimis. The Exchange Agent shall be instructed and authorized paid pursuant to sell, in one or more transactionsthis Article II, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders amount in cash equal to the extent necessary product obtained by multiplying the fractional share interest to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that which such Minority Shareholders person would otherwise be entitled to receive after withholding by the average of applicable Taxes the last reported sales prices (including Dutch dividend withholding Tax), including through or the Parent average of the quoted closing bid and ask prices if there were no sales) of a share of Old Avatex Common Stock Sale, whereby quoted on the net cash proceeds of such additional share sales shall determine OTC Bulletin Board System (the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x"OTCBB") (Aor any other stock exchange, over-the-counter market or trading facility (in any such case, an "Other Exchange") in case neither on which the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Old Avatex Common Stock equal to is primarily listed or admitted for trading) during the 30 consecutive Trading Days (aas defined below) ending on the product of (i) Trading Day next preceding the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority ShareholdersEffective Time. For the avoidance purposes of doubtthis paragraph, no Minority Shareholder the term "Trading Day" shall have a further right to Parent Common Stockmean each Monday, cash compensation or any other consideration in respect of the Second Step Distribution Tuesday, Wednesday, Thursday and Friday, other than any of such days on which securities are generally not traded or quoted on the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)OTCBB or the applicable Other Exchange.
Appears in 1 contract
Exchange of Shares. (a) Prior On or prior to the Acceptance TimeClosing Date, Buyer shall Parent appoint a bank or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheldAmerican Stock Transfer & Trust Company, delayed or conditioned) LLC to act as exchange agent in the Merger (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for ). At the payment of the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, deposit with the Exchange Agent, within two : (2i) Business Days after certificates or evidence of book-entry shares representing the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered Parent Common Stock and not properly withdrawn Parent Convertible Preferred Stock issuable pursuant to the Offer as Section 1.7(a) and (ii) cash sufficient to make payments in lieu of the Acceptance Timefractional shares in accordance with Section 1.7(c). The Parent Common Stock, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares Parent Convertible Preferred Stock and shall deposit, and shall cause to be deposited, cash amounts so deposited with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions received by the Exchange Agent with respect thereto and the aggregate Fractional Share Cash Amountto such shares, are referred to collectively as the “Exchange Fund.”). The
(b) Promptly after the Effective Time, the Parties shall cause the Exchange Agent shallto mail to the Persons who were record holders of shares of Company Common Stock that were converted into the right to receive the Merger Consideration: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (including a provision confirming that delivery of Company Stock Certificates shall be effected, pursuant and risk of loss and title to irrevocable instructionsCompany Stock Certificates shall pass, deliver only upon proper delivery of such Company Stock Certificates to the Exchange Agent, all to the extent applicable); and (ii) instructions for effecting the surrender of Company Stock Certificates in exchange for shares of Parent Common Stock. Upon surrender of a Company Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate or certificates or book-entry shares representing the Merger Consideration (in a number of whole shares of Parent Common Stock and Parent Convertible Preferred Stock) that such holder has the right to receive pursuant to the provisions of Section 1.7(a) (and cash in lieu of any fractional share of Parent Common Stock or Parent Convertible Preferred Stock pursuant to the provisions of Section 1.7(c)); and (B) the Company Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.9(b), each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive a certificate or certificates or book-entry shares of Parent Common Stock and Parent Convertible Preferred Stock representing the Merger Consideration (and cash in lieu of any fractional share of Parent Common Stock or Parent Convertible Preferred Stock). 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 shares of Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an applicable affidavit with respect to such Company Stock Certificate that includes an obligation of such owners to indemnify Parent against any claim suffered by Parent related to the lost, stolen or destroyed Company Stock Certificate as Parent may reasonably request. In the event of a transfer of ownership of a Company Stock Certificate that is not registered in the transfer records of the Company, payment of the Merger Consideration in respect of such Company Stock Certificate may be issued made to a Person other than the Person in whose name such Company Stock Certificate so surrendered is registered if such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the transfer or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable. The Merger Consideration and any dividends or other distributions as are payable pursuant to Section 2.01(b)1.9(c) shall be deemed to have been in full satisfaction of all rights pertaining to Company Common Stock formerly represented by such Company Stock Certificates.
(c) In the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, No dividends or cause other distributions declared or made with respect to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing Convertible Preferred Stock with a record date on or after the number Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock sufficient and/or Parent Convertible Preferred Stock that such holder has the right to deliver receive in the number Merger until such holder surrenders such Company Stock Certificate or provides an affidavit of shares loss or destruction in Parent Common Stock to lieu thereof in accordance with this Section 1.9 (at which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company time (or, if later, on the Legal Merger is effectuatedapplicable payment date) such holder shall be entitled, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect subject to the Parent Common Stock held by the Exchange Agent from time to time hereunder.
(e) None effect of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this AgreementLaws, any to receive all such dividends and distributions, without interest).
(d) Any portion of the Offer Consideration or Exchange Fund that remains undistributed to holders of Company Stock Certificates as of the cash date that is one year after the Closing Date shall be delivered to be paid Parent upon demand, and any holders of Company Stock Certificates who have not theretofore surrendered their Company Stock Certificates in accordance with this Article 2 remains undistributed Section 1.9 shall thereafter look only to the holders Parent for satisfaction of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all their claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in for Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (orand Parent Convertible Preferred Stock, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled and Parent Convertible Preferred Stock and any dividends or distributions with respect to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and Parent Convertible Preferred Stock.
(e) No party to this Agreement shall be liable to any holder of any Company Stock Certificate or to any other Person with respect to any shares of Parent Common Stock or Parent Convertible Preferred Stock (or dividends or distributions with respect thereto) or for any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)amounts delivered to any public official pursuant to any applicable abandoned property Law, escheat Law or similar Law.
Appears in 1 contract
Exchange of Shares. (a) Prior On or prior to the Acceptance TimeClosing Date, Buyer Parent and the Company shall appoint jointly select a bank reputable bank, transfer agent or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent in the Merger (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for ). At the payment of First Effective Time, Parent shall deposit with the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating to evidence of book-entry shares representing the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, shares of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn Parent Capital Stock issuable pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be Section 2.6(a) in form and substance reasonably satisfactory to the Companyexchange for Company Capital Stock.
(b) Buyer shallPromptly after the First Effective Time, and Parent the Parties shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after Agent to mail to the Acceptance Time, in trust for the benefit of the Persons who were record holders of Shares validly tendered Company Capital Stock that were converted into the right to receive Merger Consideration: (i) a letter of transmittal in substantially the form attached hereto as Exhibit F (the “Letter of Transmittal”) and not properly withdrawn an Accredited Investor Questionnaire in customary form and containing such provisions as Parent may reasonably specify and (ii) instructions for effecting the surrender of Company Capital Stock in exchange for book-entry shares of Parent Capital Stock representing Merger Consideration. Upon surrender of a duly executed Letter of Transmittal, Accredited Investor Questionnaire and such other documents as may be reasonably required by the Exchange Agent or Parent, the Exchange Agent shall issue and the holder of such Company Capital Stock shall be entitled to receive in exchange therefor book-entry shares representing Parent Capital Stock representing Merger Consideration that such holder has the right to receive pursuant to the Offer as provisions of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock contemplated to be issued pursuant to Section 2.01(b2.6(a).
(c) In No dividends or other distributions declared or made with respect to Parent Capital Stock with a record date after the event First Effective Time shall be paid to the holder of any Company Capital Stock with respect to the shares of Parent Capital Stock that such holder has the Post-Offer Reorganization is effectuated right to receive in the Buyer shallMerger until such holder delivers a duly executed Letter of Transmittal (at which time (or, if later, on the applicable payment date) such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and distributions, without interest).
(d) Any shares of Parent shall cause Buyer to, deposit, or cause to be deposited, Capital Stock deposited with the Exchange Agent, immediately Agent that remain undistributed to holders of Company Capital Stock as of the date that is 180 days after the effectuation Closing Date shall be delivered to Parent upon demand, and any holders of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, Company Capital Stock who have not theretofore delivered a duly executed Letter of Transmittal in trust accordance with this Section 2.8 shall thereafter look only to Parent for the benefit satisfaction of the Minority Shareholders, evidence of their claims for Parent Common Capital Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with and any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Common Stock held by the Exchange Agent from time to time hereunderCapital Stock.
(e) None of Parent, the Company, Buyer or the Exchange Agent No Party shall be liable to any Person in respect holder of any portion of the Exchange Fund (including for purposes of this Section 2.13, Company Capital Stock or to any other Person with respect to any shares in of Parent Common Capital Stock deposited pursuant to Section 2.13(c(or dividends or distributions with respect thereto) and delivered pursuant to Section 2.13(f) and or for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration amounts delivered to a any public official pursuant to any applicable abandoned propertyproperty Law, escheat Law or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Exchange of Shares. (a) Prior to the Acceptance Time, Buyer Guaranty shall appoint a bank deposit or trust company selected with the prior written approval of the Company (such approval not cause to be unreasonably withheld, delayed or conditioned) to act as exchange agent deposited in trust with GBT (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”)
(i) for certificates representing shares of Guaranty Common Stock making up the payment aggregate stock portion of the Offer Merger Consideration deliverable to Qualified Shareholders of TLB and shall enter into (ii) cash in an agreement aggregate amount sufficient to make the appropriate payments to (the “Exchange Agent Agreement”A) relating Qualified Shareholders who elect to the Exchange Agent’s responsibilities under this Agreementreceive cash, including the delivery(B) Non-Qualified Shareholders, following the Expiration Time, of the Offer Consideration to the (C) holders of TLB Options, (D) holders of TLB Warrants, and (E) holders of Dissenting Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance TimeSection 2.4 hereof, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer if any (such certificates and cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, being referred to as the “Exchange Fund”). The Exchange Fund shall not be used for any purpose other than as provided in this Agreement. The Exchange Agent shall, pursuant to irrevocable instructions, shall promptly deliver such whole the stock certificates representing shares of Parent Guaranty Common Stock contemplated to be issued pursuant to Section 2.01(b).
(c) In and the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, immediately after the effectuation cash payment upon surrender of the Asset Salecertificates representing shares of TLB Common Stock, the Post-Demerger Share Sale TLB Options or the Post-Merger Share SaleTLB Warrants, as the case may be.
(b) As soon as practicable after the Effective Time, in trust for the benefit Exchange Agent shall mail to each record holder of an outstanding certificate or certificates which as of the Minority Shareholders, evidence Effective Date represented shares of Parent TLB Common Stock (the “Certificates”), a form letter of transmittal which will specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent and contain instructions for use in book-entry form (or certificates representing effecting the surrender of the Certificates for payment therefor. Upon surrender to the Exchange Agent of a Certificate, together with such Parent Common Stockletter of transmittal duly executed, at Parent’s election) representing the holder of such Certificate shall be entitled to receive in exchange therefor the number of shares of Parent Guaranty Common Stock sufficient to deliver and/or amount of cash, if any, provided in Section 2.1 hereof, and such Certificate shall forthwith be cancelled. Guaranty shall provide the Exchange Agent with certificates for Guaranty Common Stock, as requested by the Exchange Agent, for the number of shares provided in Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with any dividends Section 2.1. No interest will be paid or distributions accrued with respect to the shares of Guaranty Common Stock or cash payable upon surrender of the Certificates. Until surrendered in accordance with the provisions of this Section 2.5, each Certificate (other than Certificates representing Dissenting Shares) shall represent for all purposes the right to receive the Merger Consideration without any interest thereon.
(c) No dividends or other distributions declared after the Effective Time with respect to shares of Guaranty Common Stock and payable to the holders thereof shall be paid to the holder of a Certificate until such Parent Common Stock). The holder surrenders such Certificate to the Exchange Agent shall, pursuant to irrevocable instructions in accordance with this Section 2.5. After the surrender of Buyer and the Company (or, if the Legal Merger is effectuateda Certificate in accordance with this Section 2.5, the Allotting Entity)holder thereof shall be entitled to receive any such dividends or other distributions, deliver such without interest thereon, which had been declared after the Effective Time with respect to the shares of Parent Guaranty Common Stock contemplated to be issued pursuant to Section 2.13(f)represented by such Certificate.
(d) The Exchange Agent After the Effective Time, the stock transfer ledger of TLB shall not be entitled to vote or exercise any rights closed and there shall be no transfers on the stock transfer books of ownership with respect TLB of the shares of TLB Common Stock which were outstanding immediately prior to the Parent Common Stock held by Effective Time. If, after the Effective Time, Certificates are presented to Guaranty, they shall be promptly presented to the Exchange Agent from time to time hereunderand exchanged as provided in this Section 2.5.
(e) None of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any Any portion of the Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the shareholders of TLB for purposes six months after the Exchange Agent mails the letter of this Section 2.13, any shares in Parent Common Stock deposited transmittal pursuant to Section 2.13(c2.5 shall be returned to Guaranty upon demand, and any shareholders of TLB who have not previously complied with the exchange procedures in this Article II shall look to Guaranty only, and not the Exchange Agent, for the payment of any Merger Consideration in respect of such shares.
(f) If any certificate representing shares of Guaranty Common Stock is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition of the issuance thereof that the Certificate so surrendered shall be appropriately endorsed (or accompanied by an appropriate instrument of transfer) and delivered pursuant otherwise in proper form (reasonably satisfactory to Section 2.13(fGuaranty) for transfer, and that the person requesting such exchange shall pay to the Exchange Agent in advance any cash received from transfer or other taxes required by reason of the sale issuance of a certificate representing shares of Guaranty Common Stock in any name other than that of the registered holder of the Certificate surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or not payable.
(g) None of Guaranty, Interim Bank, TLB, the Exchange Agent or any other Person shall be liable to any former holder of shares in Parent of TLB Common Stock as set forth in Section 2.13(f)for any Guaranty Common Stock (or dividends or distributions with respect thereto) or the Offer Consideration cash properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled theretolaws.
(fh) In the event any Certificate shall have been lost, stolen or destroyed, then upon the making of an affidavit of that fact by the Post-Offer Reorganization is effectuated and person claiming such Certificate to be lost, stolen or destroyed and, if required by Guaranty or the Second Step Distribution is implementedExchange Agent, the Buyer and the Company shall jointly advise, posting by such person of a bond in accordance with Section 5.07, such amount as Guaranty or the Exchange Agent in writing of (i) the number of shares in Parent Common Stock may direct, not to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (exceed the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent shareholders’ portion of the Company (orMerger Consideration, if the Legal Merger is effectuatedas indemnity against any claim that may be made against Guaranty with respect to such Certificate, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shallwill issue in exchange for such lost, as soon as possible, remit to stolen or destroyed Certificate the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent Consideration deliverable in respect thereof pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Guaranty Bancshares Inc /Tx/)
Exchange of Shares. (a) Prior to the Acceptance Effective Time, Buyer Parent shall appoint a bank or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as an exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment purpose of exchanging Certificates for the Merger Consideration. As soon as reasonably practicable after the Effective Time, Parent will cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock as of the Offer Effective Time, whose shares of Company Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 2.6, a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall enter into an agreement (pass, only upon proper delivery of the “Exchange Agent Agreement”) relating Certificates to the Exchange Agent’s responsibilities under this Agreement), including instructions for use in effecting the delivery, following surrender of Certificates to the Expiration Exchange Agent in exchange for the Merger Consideration. Promptly after the Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, deposited with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form Agent (or certificates representing such Parent Common Stock, at Parent’s electioni) representing the number of shares of Parent Common Stock (which shall be in non-certificated book-entry form) payable as Stock Consideration upon due surrender of the Certificates pursuant to the provisions of this ARTICLE II and (ii) cash in U.S. dollars sufficient to deliver pay the aggregate Offer Cash Consideration and cash in lieu of fractional shares payable upon due surrender of the Certificates pursuant to the provisions of this ARTICLE II. Following the Effective Time, Parent agrees to make available to the Exchange Agent, from time to time as needed, cash in the Offer (such U.S. dollars sufficient to pay any dividends and other distributions pursuant to Section 2.9(f). All cash and book-entry shares representing Parent Common Stock, together Stock deposited with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, Exchange Agent shall be referred to in this Agreement as the “Exchange Fund”). .” The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock the Merger Consideration contemplated to be issued pursuant to Section 2.01(b)2.6 and Section 2.13 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent.
(cb) In Each holder of shares of Company Common Stock that have been converted into the event that right to receive the Post-Offer Reorganization is effectuated Merger Consideration, upon surrender to the Buyer shallExchange Agent of a Certificate, together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale will be entitled to receive in exchange therefor (i) one or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence more shares of Parent Common Stock (which shall be in non-certificated book-entry form (or certificates representing such Parent Common Stockunless a physical certificate is requested) representing, at Parent’s election) representing in the aggregate, the whole number of shares of Parent Common Stock sufficient that such holder has the right to deliver receive, (ii) a check in the number of shares in Parent Common Stock amount that such holder has the right to which the Minority Shareholders become entitled receive pursuant to the Second Step Distribution provisions of this ARTICLE II, including the Cash Consideration, cash payable in lieu of fractional shares pursuant to Section 2.13 and dividends and other distributions payable pursuant to Section 2.9(f) (together with less any dividends or distributions with respect to such Parent Common Stockrequired Tax withholding). The Merger Consideration shall be paid as promptly as practicable after receipt by the Exchange Agent of the Certificate and letter of transmittal in accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, each such Certificate shall, pursuant after the Effective Time, represent for all purposes only the right to irrevocable instructions receive such Merger Consideration.
(c) If any portion of Buyer and the Company (or, if the Legal Merger Consideration is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant registered in the name of or paid to Section 2.13(f)a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition thereof that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the Merger Consideration shall pay to the Exchange Agent any required transfer or other similar Taxes or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(d) The Exchange Agent After the Effective Time, there shall not be entitled no further registration of transfers of shares of Company Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to vote or exercise the Effective Time shall cease to have any rights of ownership with respect to the Parent such shares of Company Common Stock held except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent from time to time hereunderor Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this ARTICLE II.
(e) None Any portion of the Exchange Fund that remains unclaimed by the holders of shares of Company Common Stock one (1) year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged his or her shares of Company Common Stock for the CompanyMerger Consideration in accordance with this Section 2.9 prior to that time shall thereafter look only to Parent for delivery of the Merger Consideration in respect of such holder’s shares of Company Common Stock. Notwithstanding the foregoing, Buyer or neither Parent, Merger Sub nor the Exchange Agent Company shall be liable to any Person in respect holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Company Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawproperty Laws. Notwithstanding any other provision of this Agreement, any portion of the Offer Any Merger Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the remaining unclaimed by holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as shares of the second (2nd) anniversary of the Acceptance Time (or Company Common Stock immediately prior to such earlier date on which the Offer Consideration or time as such cash amounts would otherwise escheat to or become the property of any Governmental Authority), Entity shall, to the extent permitted by applicable Law, become the property of Parent, Parent free and clear of all any claims or interest of any Person previously entitled thereto.
(f) In No dividends or other distributions with respect to shares of Parent Common Stock issued in the event that Merger shall be paid to the Post-Offer Reorganization is effectuated and holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 2.9. Following such surrender, subject to the Second Step Distribution is implementedeffect of escheat, Tax or other applicable Law, there shall be paid, without interest, to the Buyer and record holder of the Company shall jointly advise, shares of Parent Common Stock issued in accordance with Section 5.07, the Exchange Agent in writing of exchange therefor (i) at the number time of such surrender, all dividends and other distributions payable in respect of such shares in of Parent Common Stock to which with a record date after the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant Effective Time and a payment date on or prior to the Second Step Distribution (prior to giving effect to any Tax withholding) date of such surrender and not previously paid and (ii) at the amount appropriate payment date, the dividends or other distributions payable with respect to such shares of Dutch dividend withholding Tax Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount shares of such Dutch dividend withholding Tax in EurosParent Common Stock, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of all shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained issued pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders dividends pursuant to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration immediately preceding sentence as if issued and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment outstanding as of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)Effective Time.
Appears in 1 contract
Exchange of Shares. (a) Prior to the Acceptance Time, Buyer shall appoint a bank or trust company selected with the prior written approval of Parent and the Company (such approval not to be unreasonably withheldhave selected Equiniti Trust Company, delayed or conditioned) LLC, a New York limited liability trust company, to act as exchange agent in the Merger (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for ). At the payment of First Effective Time, Parent shall deposit with the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating to certificates or evidence of book-entry shares representing the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered Parent Common Stock and not properly withdrawn Parent Convertible Preferred Stock issuable pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step DistributionSection 1.6(a). The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, Parent Common Stock and Parent shall cause Buyer to, deposit, or cause to be deposited, Convertible Preferred Stock so deposited with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions received by the Exchange Agent with respect thereto and the aggregate Fractional Share Cash Amountto such shares, are referred to collectively as the “Exchange Fund.”). The
(b) Promptly following the First Effective Time, the Parties shall cause the Exchange Agent shall, pursuant to irrevocable instructions, deliver mail to the Persons who are record holders of Company Stock Certificates or Book-Entry Shares that will be converted into the right to receive Merger Consideration: (i) a letter of transmittal in the form attached hereto as Exhibit G (“Letter of Transmittal”) and an accredited investor questionnaire in customary form and containing such whole provisions as Parent may reasonably specify and (ii) instructions for effecting the surrender of the Company Stock Certificates or Book-Entry Shares in exchange for book-entry shares of Parent Common Stock contemplated and Parent Convertible Preferred Stock representing the Merger Consideration. Upon surrender of a duly executed Letter of Transmittal, accredited investor questionnaire and such other documents as may be reasonably required by the Exchange Agent or Parent, each such former holder of Company Stock Certificates or Book-Entry Shares shall be entitled to receive, and the Exchange Agent shall issue, in exchange therefor, book-entry shares of Parent Common Stock and Parent Convertible Preferred Stock, as applicable, representing the Merger Consideration that such holder of Company Capital Stock has the right to receive pursuant to the provisions of Section 1.6(a), and each Company Stock Certificate or Book-Entry Share shall be issued canceled. The Merger Consideration and any dividends or other distributions as are payable pursuant to Section 2.01(b)1.8(d) shall be deemed to have been in full satisfaction of all rights pertaining to Company Capital Stock formerly represented by such Company Stock Certificates or Book-Entry Shares.
(c) In the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, No dividends or cause other distributions declared or made with respect to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in bookor Parent Convertible Preferred Stock with a record date on or after the First Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate or Book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing Entry Shares with respect to the number of shares of Parent Common Stock sufficient and/or Parent Convertible Preferred Stock that such holder has the right to deliver receive in the number Merger until such holder surrenders such Company Stock Certificate or transfers such Book-Entry Shares or provides an affidavit of loss or destruction in lieu thereof in accordance with this Section 1.8 (at which time (or, if later, on the applicable payment date) such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains unclaimed by holders of shares of Company Capital Stock as of the date that is one year after the Closing Date shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or Book-Entry Shares who have not theretofore surrendered their Company Stock Certificates or transferred their Book-Entry Shares in accordance with this Section 1.8 shall thereafter look only to Parent as general creditors for satisfaction of their claims for Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with and Parent Convertible Preferred Stock and any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the and Parent Common Stock held by the Exchange Agent from time to time hereunderConvertible Preferred Stock.
(e) None of Parent, the Company, Buyer or the Exchange Agent No Party shall be liable to any Person in respect holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, Company Capital Stock or to any other Person with respect to any shares in of Parent Common Stock deposited pursuant to Section 2.13(cor Parent Convertible Preferred Stock (or dividends or distributions with respect thereto) and delivered pursuant to Section 2.13(f) and or for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration amounts delivered to a any public official pursuant to any applicable abandoned propertyproperty Law, escheat Law or similar Law. Notwithstanding any other provision of this Agreement, any Any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 Exchange Fund that remains undistributed to the unclaimed by holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, shares of Company Capital Stock as of the second (2nd) anniversary of date that is two years after the Acceptance Time Closing Date (or immediately prior to such earlier date on which the Offer Consideration related Exchange Funds (and all dividends or such cash other distributions in respect thereof) would otherwise escheat to or become the property of any Governmental Authority), Body) shall, to the extent permitted by applicable Law, become the property of Parentthe Surviving Entity, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Exchange of Shares. (a) Prior On or prior to the Acceptance TimeClosing Date, Buyer Parent and the Company shall appoint agree upon and select a bank reputable bank, transfer agent or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent in the Merger (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for ). At the payment of Effective Time, Parent shall deposit with the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating to evidence of book-entry shares representing the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn Parent Common Stock issuable pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step DistributionSection 1.5(a). The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, Common Stock so deposited with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions received by the Exchange Agent with respect thereto and the aggregate Fractional Share Cash Amountto such shares, are referred to collectively as the “Exchange Fund.”). The
(b) Promptly after the Effective Time, the Parties shall cause the Exchange Agent shallto mail to the Persons who were record holders of shares of Company Capital Stock that were converted into the right to receive the Merger Consideration (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (including a provision confirming that delivery of the Company Stock Certificates shall be effected, pursuant and risk of loss and title to irrevocable instructionsCompany Stock Certificates shall pass, deliver only upon proper delivery of such Company Stock Certificates to the Exchange Agent); and (ii) instructions for effecting the surrender of Company Stock Certificates in exchange for shares of Parent Common Stock. Upon surrender of a Company Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent (including a properly completed IRS Form W-9 or the appropriate version of IRS Form W-8, as applicable): (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor book-entry shares representing the Merger Consideration (in a number of whole shares of Parent Common Stock) that such holder has the right to receive pursuant to the provisions of Section 1.5(a); 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 book-entry shares of Parent Common Stock representing the Merger Consideration. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition precedent to the delivery of any shares of Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an applicable affidavit with respect to such Company Stock Certificate that includes an obligation of such owner to indemnify Parent against any claim suffered by Parent related to the lost, stolen or destroyed Company Stock Certificate as Parent may reasonably request. In the event of a transfer of ownership of a Company Stock Certificate that is not registered in the transfer records of the Company, payment of the Merger Consideration may be issued made to a Person other than the Person in whose name such Company Stock Certificate so surrendered is registered if such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay any transfer or similar Taxes required by reason of the transfer or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable. The Merger Consideration and any dividends or other distributions as are payable pursuant to Section 2.01(b)1.7(c) shall be deemed to have been in full satisfaction of all rights pertaining to Company Capital Stock formerly represented by such Company Stock Certificate.
(c) In the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, No dividends or cause other distributions declared or made with respect to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (with a record date on or certificates representing such Parent Common Stock, at Parent’s election) representing after the number Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock sufficient that such holder has the right to deliver receive in the number Merger until such holder surrenders such Company Stock Certificate or provides an affidavit of shares loss, theft or destruction in lieu thereof in accordance with this Section 1.7 together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent (at which time (or, if later, on the applicable payment date) such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed to holders of Company Stock Certificates as of the date that is one (1) year after the Closing Date shall be delivered to Parent upon demand, and any holders of Company Stock Certificates who have not theretofore surrendered their Company Stock Certificates in accordance with this Section 1.7 shall thereafter look only to Parent for satisfaction of their claims for Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with and any dividends or distributions with respect to such shares of Parent Common Stock). The Exchange Agent shall, pursuant .
(e) No Party to irrevocable instructions this Agreement shall be liable to any holder of Buyer and the any Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such Stock Certificate or to any other Person with respect to any shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership dividends or distributions with respect to the Parent Common Stock held by the Exchange Agent from time to time hereunder.
(ethereto) None of Parent, the Company, Buyer or the Exchange Agent shall be liable for any cash amounts delivered to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned propertyproperty Law, escheat Law or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of All shares of Parent Common Stock issued pursuant to this Agreement shall bear a legend (and Parent will make a notation on its transfer books to such effect) prominently stamped or printed thereon or the substance of which the shareholders would will otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, reflected on the Aggregate Withholding Amount (books and records of the “transfer agent for Parent Common Stock Sale). From the net cash proceeds obtained pursuant with respect to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional book-entry shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactionseach case reading substantially as follows: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax)AS AMENDED, including through the Parent Common Stock SaleOR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO RESALE IN CONNECTION WITH A DISTRIBUTION AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuatedAS AMENDED, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f)AND APPLICABLE STATE SECURITIES LAWS, (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT.”
Appears in 1 contract
Exchange of Shares. (a) Prior to the Acceptance Effective Time, Buyer Parent shall appoint a bank or trust company selected with the prior written approval of an exchange agent reasonably satisfactory to the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment purpose of exchanging Certificates for the Merger Consideration. As soon as reasonably practicable after the Effective Time, Parent will cause the Exchange Agent to send to each holder of record of shares of Company Common Stock as of the Offer Effective Time whose shares of Company Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 2.11, a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall enter into an agreement (pass, only upon proper delivery of the “Exchange Agent Agreement”) relating Certificates to the Exchange Agent’s responsibilities under this Agreement), including instructions for use in effecting the delivery, following surrender of Certificates to the Expiration Exchange Agent in exchange for the Merger Consideration. Immediately after the Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, deposited with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form Agent (or certificates representing such Parent Common Stock, at Parent’s electioni) representing the number of shares of Parent Common Stock (which shall be in non-certificated book-entry form) payable as Merger Consideration upon due surrender of the Certificates pursuant to the provisions of this ARTICLE II and (ii) cash in U.S. dollars sufficient to deliver pay the aggregate Offer cash portion of the Merger Consideration payable upon due surrender of the Certificates pursuant to the provisions of this ARTICLE II, in each case in trust for each holder of shares of Company Common Stock. Following the Offer (such Effective Time, Parent agrees to make available to the Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay any dividends and other distributions pursuant to Section 2.14(f). All cash and book-entry shares representing Parent Common Stock, together Stock deposited with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, Exchange Agent shall be referred to in this Agreement as the “Exchange Fund”). .” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued and paid pursuant to Section 2.11 and Section 2.14(g) out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest the cash included in the Exchange Fund as directed by Parent. Any interest and other income resulting from such whole investments shall be the property of, and paid to, Parent.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by Parent or the Exchange Agent, will be entitled to receive in exchange therefor (i) one or more shares of Parent Common Stock contemplated to (which shall be issued pursuant to Section 2.01(b).
(c) In the event that the Postin non-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in certificated book-entry form (or certificates representing such Parent Common Stockunless a physical certificate is requested) representing, at Parent’s election) representing in the aggregate, the whole number of shares of Parent Common Stock sufficient that such holder has the right to deliver receive, (ii) a check in the number of shares in Parent Common Stock amount that such holder has the right to which the Minority Shareholders become entitled receive pursuant to the Second Step Distribution (together with any provisions of this ARTICLE II, including the cash portion of the Merger Consideration and dividends or and other distributions with respect payable pursuant to such Parent Common StockSection 2.14(f). The Merger Consideration shall be paid as promptly as practicable after receipt by the Exchange Agent of the Certificate and letter of transmittal in accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration or on any unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, each such Certificate shall, pursuant after the Effective Time, represent for all purposes only the right to irrevocable instructions receive such Merger Consideration.
(c) If any portion of Buyer and the Company (or, if the Legal Merger Consideration is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant registered in the name of or paid to Section 2.13(f)a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition thereof that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the Merger Consideration shall pay to the Exchange Agent any required transfer or other similar Taxes or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(d) The Exchange Agent After the Effective Time, there shall not be entitled no further registration of transfers of shares of Company Common Stock outstanding immediately prior to vote or exercise the Effective Time. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights of ownership with respect to the Parent such shares of Company Common Stock held except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent from time to time hereunderor Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this ARTICLE II.
(e) None Any portion of the Exchange Fund that remains unclaimed by the holders of shares of Company Common Stock one (1) year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged his or her shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.14 prior to that time shall thereafter look only to Parent for delivery of the Merger Consideration in respect of such holder’s shares of Company Common Stock. Notwithstanding the foregoing, none of Parent, the Company, Buyer Merger Sub or the Exchange Agent Company shall be liable to any Person in respect holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Company Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawproperty Laws. Notwithstanding any other provision of this Agreement, any portion of the Offer Any Merger Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the remaining unclaimed by holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as shares of the second (2nd) anniversary of the Acceptance Time (or Company Common Stock immediately prior to such earlier date on which the Offer Consideration or time as such cash amounts would otherwise escheat to or become the property of any Governmental Authority), Entity shall, to the extent permitted by applicable Law, become the property of Parent, Parent free and clear of all any claims or interest of any Person previously entitled thereto.
(f) In No dividends or other distributions with respect to shares of Parent Common Stock issued in the event that Merger shall be paid to the Post-Offer Reorganization is effectuated and holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 2.14. Following such surrender, subject to the Second Step Distribution is implementedeffect of escheat, Tax or other applicable Law, there shall be paid, without interest, to the Buyer and record holder of the Company shall jointly advise, shares of Parent Common Stock issued in accordance with Section 5.07, the Exchange Agent in writing of exchange therefor (i) at the number time of such surrender, all dividends and other distributions payable in respect of such shares in of Parent Common Stock to which with a record date after the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant Effective Time and a payment date on or prior to the Second Step Distribution (prior to giving effect to any Tax withholding) date of such surrender and not previously paid and (ii) at the amount appropriate payment date, the dividends or other distributions payable with respect to such shares of Dutch dividend withholding Tax Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount shares of such Dutch dividend withholding Tax in EurosParent Common Stock, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of all shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained issued pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders dividends pursuant to the extent necessary to make payments to each individual Minority Shareholder in lieu immediately-preceding sentence as if issued and outstanding as of the Effective Time.
(g) No certificates or scrip representing fractional shares of Parent Common Stock that shall be issued upon the surrender for exchange of Certificates to the Exchange Agent for the Merger Consideration, no dividends or other distributions of Parent shall relate to such Minority Shareholders fractional share interests and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a stockholder of Parent. In lieu of such fractional share interests, Parent shall pay to each holder of a Certificate an amount in cash equal to the product obtained by multiplying (i) the fractional share interest to which such holder (after taking into account all shares of Company Common Stock formerly represented by all Certificates surrendered by such holder) would otherwise be entitled to receive after withholding of applicable Taxes by (including Dutch dividend withholding Tax), including through ii) the Parent Common Stock SaleCash Value.
(h) If any Certificate shall have been lost, whereby stolen or destroyed, upon the net cash proceeds making of an affidavit of that fact by the Person claiming such additional share sales shall determine Certificate to be lost, stolen or destroyed and, if required by Parent, the compensation for the relevant fractions posting by such Person of shares of a bond, in such reasonable amount as Parent Common Stock. As a result may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall (x) (A) will issue in case neither exchange for such lost, stolen or destroyed Certificate the Conversion nor the Post-Merger Share Sale has been effectuated, deliver Consideration to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Company Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)represented by such Certificate.
Appears in 1 contract
Exchange of Shares. (a) Prior On or prior to the Acceptance TimeClosing Date, Buyer Parent and the Company shall appoint agree upon and select a bank reputable bank, transfer agent or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent in the Merger (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for ). At the payment of the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration First Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, deposit with the Exchange Agent, within two : (2i) Business Days after certificates or evidence of book-entry shares representing the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered Parent Common Stock and not properly withdrawn Parent Convertible Preferred Stock issuable pursuant to the Offer as Section 1.6(a) and (ii) cash sufficient to make payments in lieu of the Acceptance Timefractional shares in accordance with Section 1.6(c). The Parent Common Stock, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares Parent Convertible Preferred Stock and shall deposit, and shall cause to be deposited, cash amounts so deposited with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions received by the Exchange Agent with respect thereto and the aggregate Fractional Share Cash Amountto such shares, are referred to collectively as the “Exchange Fund.”). The
(b) Promptly after the First Effective Time, the Parties shall cause the Exchange Agent shallto mail to the Persons who were record holders of shares of Company Capital Stock that were converted into the right to receive the Merger Consideration: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (including a provision confirming that delivery of Company Stock Certificates or transfer of Book-Entry Shares to the Exchange Agent shall be effected, pursuant and risk of loss and title thereto shall pass, only upon proper delivery of such Company Stock Certificates or transfer of the Book-Entry Shares to irrevocable instructionsthe Exchange Agent); and (ii) instructions for effecting the surrender of Company Stock Certificates or transfer of Book-Entry Shares in exchange for shares of Parent Common Stock. Upon surrender of a Company Stock Certificate or transfer of Book-Entry Share to the Exchange Agent for exchange, deliver together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book-Entry Share shall be entitled to receive in exchange therefor book-entry shares representing the Merger Consideration (in a number of whole shares of Parent Common Stock contemplated and Parent Convertible Preferred Stock) that such holder has the right to be issued receive pursuant to the provisions of Section 2.01(b1.6(a) (and cash in lieu of any fractional share of Parent Common Stock or Parent Convertible Preferred Stock pursuant to the provisions of Section 1.6(c).
); and (cB) In the event that the PostCompany Stock Certificate or Book-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, Entry Share so surrendered or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Saletransferred, as the case may be, in trust for shall be canceled. Until surrendered or transferred as contemplated by this Section 1.8(b), each Company Stock Certificate or Book-Entry Share shall be deemed, from and after the benefit of First Effective Time, to represent only the Minority Shareholders, evidence of Parent Common Stock in right to receive book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver and Parent Convertible Preferred Stock representing the number Merger Consideration (and cash in lieu of shares in any fractional share of Parent Common Stock to which the Minority Shareholders become entitled pursuant or Parent Convertible Preferred Stock). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the Second Step Distribution (together with delivery of any dividends shares of Parent Common Stock, require the owner of such lost, stolen or distributions destroyed Company Stock Certificate to provide an applicable affidavit with respect to such Company Stock Certificate that includes an obligation of such owner to indemnify Parent against any claim suffered by Parent related to the lost, stolen or destroyed Company Stock Certificate as Parent may reasonably request. In the event of a transfer of ownership of a Company Stock Certificate or Book-Entry Share that is not registered in the transfer records of the Company, payment of the Merger Consideration in respect of such Company Stock Certificate or Book-Entry Share may be made to a Person other than the Person in whose name such Company Stock Certificate or Book-Entry Share so surrendered or transferred is registered if such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the transfer or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable. The Merger Consideration and any dividends or other distributions as are payable pursuant to Section 1.8(c) shall be deemed to have been in full satisfaction of all rights pertaining to Company Capital Stock formerly represented by such Company Stock Certificates or Book-Entry Shares.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock). The Exchange Agent shall, pursuant Stock or Parent Convertible Preferred Stock with a record date on or after the First Effective Time shall be paid to irrevocable instructions the holder of Buyer and any unsurrendered Company Stock Certificate or Book-Entry Shares with respect to the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated and/or Parent Convertible Preferred Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or transfers such Book-Entry Shares or provides an affidavit of loss or destruction in lieu thereof in accordance with this Section 1.8 (at which time (or, if later, on the applicable payment date) such holder shall be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect entitled, subject to the Parent Common Stock held by the Exchange Agent from time to time hereunder.
(e) None effect of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this AgreementLaws, any to receive all such dividends and distributions, without interest).
(d) Any portion of the Offer Consideration Exchange Fund that remains unclaimed by holders of shares of Company Capital Stock as of the date that is one year after the Closing Date shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or the cash to be paid Book-Entry Shares who have not theretofore surrendered their Company Stock Certificates or transferred their Book-Entry Shares in accordance with this Article 2 remains undistributed Section 1.8 shall thereafter look only to the holders Parent for satisfaction of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all their claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in for Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (orand Parent Convertible Preferred Stock, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled and Parent Convertible Preferred Stock and any dividends or distributions with respect to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and Parent Convertible Preferred Stock.
(e) No Party shall be liable to any holder of any shares of Company Capital Stock or to any other Person with respect to any shares of Parent Common Stock or Parent Convertible Preferred Stock (or dividends or distributions with respect thereto) or for any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)amounts delivered to any public official pursuant to any applicable abandoned property Law, escheat Law or similar Law.
Appears in 1 contract
Exchange of Shares. (a) Prior to the Acceptance Timefiling of the Registration Statement, Buyer Newco shall appoint a United States bank or trust company selected with or other independent financial institution in the prior written approval of the Company United States (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as exchange agent for the payment Merger and to deliver to former Registered Stockholders the amounts of Surviving Corporation Common Stock and cash in lieu of fractional shares to which each of them is entitled. Newco and the Offer Consideration and Company shall enter into an exchange agent agreement (the “Exchange Agent Agreement”) relating to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after which agreement shall set forth the Acceptance Timeduties, in trust for the benefit responsibilities and obligations of the Exchange Agent consistent with the terms of this Agreement. The Surviving Corporation shall make available to the Exchange Agent shares of Surviving Corporation Common Stock and necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 1.7(f) and any dividends or distribution which holders of Shares validly tendered and not properly withdrawn shares of Company Common Stock may be entitled pursuant to Section 1.8(h). At the Offer as of Closing, (i) the Acceptance Time, Company shall deposit with the aggregate Fractional Share Cash Amount payable in Exchange Agent funds sufficient to pay the Offer to holders of Shares Special Dividend and such funds shall be segregated for such purpose and (ii) Newco shall deposit, and or shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Surviving Corporation Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock contemplated to be issued pursuant to Section 2.01(b1.7(b), an amount of cash sufficient to fund any cash payment in lieu of fractional shares that may be required pursuant to Section 1.7(f), and the aggregate amount of any dividend or distribution to which Registered Stockholders may be entitled pursuant to Section 1.8(h) (such cash and certificates for Surviving Corporation Common Stock being hereinafter referred to as the “Consideration Fund”).
(cb) In Promptly after the Effective Time (and in any event that within five Business Days after the Post-Offer Reorganization is effectuated Effective Time), the Buyer shallSurviving Corporation shall cause the Exchange Agent to mail to each Registered Stockholder whose shares were converted into Surviving Corporation Common Stock: a letter of transmittal, in customary form, and Parent instructions for use, the form and substance of which letter of transmittal and instructions shall cause Buyer to, deposit, be substantially and reasonably agreed to by the Company and Newco and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Exchange Agent in connection with the transfer of a Book Entry Share or cause surrender of a Certificate for cancellation to be deposited, with the Exchange Agent, immediately after in each case together with such letter of transmittal, duly executed and completed in accordance with the effectuation instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, (i) the aggregate amount of shares of Surviving Corporation Common Stock and cash in lieu of fractional shares due in respect of the Asset Saleshares of Company Common Stock formerly represented by such Book Entry Share or Certificate, (ii) the aggregate amount of the Special Dividend due in respect thereof and (iii) any dividends or distributions payable with respect to such shares of Surviving Corporation Common Stock, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Post-Demerger shares of Surviving Corporation Common Stock and cash in lieu of fractional shares to which such holders are entitled, or on any other amount payable as provided above. If any shares of Surviving Corporation Common Stock or cash in lieu of fractional shares are to be delivered or paid to a Person other than a Registered Stockholder in whose name the Book Entry Share Sale transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to
(c) Any cash in the Consideration Fund shall be invested by the Exchange Agent as directed by the Surviving Corporation. Earnings on the Consideration Fund in excess of the amounts payable to the Registered Stockholders shall be the sole and exclusive property of the Surviving Corporation and shall be paid to the Surviving Corporation. No investment of the Consideration Fund shall relieve the Surviving Corporation or the Post-Merger Share SaleExchange Agent from promptly making the payments required by this Article 1, as and following any losses from any such investment, the Surviving Corporation shall promptly provide additional cash funds (which, in the case may beof any funds used to pay the Special Dividend, in trust shall be treated for all purposes as having been provided on behalf of the Company) to the Exchange Agent for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form former Registered Stockholders (or certificates representing such Parent Common Stock, at Parent’s election) representing other than the number holders of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Company Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued cancelled pursuant to Section 2.13(f1.7(c)) in the amount of such losses, which additional funds will be deemed to be part of the Consideration Fund.
(d) The Exchange Agent After the Effective Time, there shall not be entitled to vote or exercise any rights no transfers on the stock transfer books of ownership with respect the Company of the shares of Company Common Stock that were outstanding immediately prior to the Parent Common Stock held by Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Exchange Agent from time for any reason, they shall be cancelled and exchanged for the shares of Surviving Corporation Common Stock and cash in lieu of fractional shares and the Special Dividend to time hereunderwhich the holders thereof are entitled pursuant to this Article 1, except as otherwise provided by Law.
(e) None Any portion of Parentthe Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by a Registered Stockholder one year after the Effective Time shall, to the Companyextent permitted by applicable Law, Buyer be delivered to the Surviving Corporation for no consideration. Any Registered Stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article 1 with respect to such Certificates or Book Entry Shares shall thereafter look only to the Surviving Corporation for payment of their claim for shares of Surviving Corporation Common Stock and cash in lieu of fractional shares (and any amounts owed pursuant to Sections 1.7(f) and 1.8(h)) in respect thereof).
(f) Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding If any other provision of this AgreementCertificate or Book Entry Share shall not have been surrendered or transferred, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed respectively, prior to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such any cash otherwise deliverable in respect thereof would otherwise escheat to or become the property of any Governmental Authority)Entity pursuant to applicable Law, any such cash shall, to the extent permitted by applicable Law, become the property of Parentthe Surviving Corporation, free and clear any Registered Stockholder of all claims such Certificate or interest Book Entry Share who has not theretofore complied with this Article 1 with respect thereto shall thereafter look only to the Surviving Corporation for payment of their claim for such cash (and any Person previously entitled theretoamounts owed pursuant to Sections 1.7(f) and 1.8(h)) in respect thereof.
(fg) In If any Certificate shall have been lost, stolen or destroyed, upon the event making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to the Post-Offer Reorganization is effectuated Surviving Corporation and the Second Step Distribution is implementedExchange Agent) by the Person claiming such certificate to be lost, stolen or destroyed, and if required by the Surviving Corporation or the Exchange Agent, the Buyer posting by such Person of a bond in such reasonable and customary amount as the Company shall jointly advise, in accordance with Section 5.07Surviving Corporation or the Exchange Agent may so require, the Exchange Agent shall deliver in writing exchange for such lost, stolen or destroyed Certificate the shares of (i) the number of shares in Parent Surviving Corporation Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if shares and the amount thereof of the Special Dividend to which such Person is de minimis. The Exchange Agent entitled in respect of such Certificate pursuant to this Article 1.
(h) Whenever a dividend or other distribution is declared or made after the date hereof with respect to Surviving Corporation Common Stock with a record date after the Effective Time, such declaration shall be instructed and authorized to sell, include a dividend or other distribution in one or more transactions, an additional number respect of all shares of Parent Surviving Corporation Common Stock on behalf of issuable to a Registered Stockholder pursuant to this Agreement as at that record date. No dividend or other distribution declared or made after the date hereof with respect to Surviving Corporation Common Stock with a record date after the Effective Time and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder no payment in lieu of fractional shares pursuant to Section 1.7(f) or in respect of Parent the Special Dividend will be paid to the Registered Stockholder owning any unsurrendered Certificates or Book Entry Shares with respect to shares of Surviving Corporation Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through represented thereby until the Parent Common Stock Sale, whereby the net cash proceeds Registered Stockholder of such additional share sales Certificates or Book Entry Shares shall determine the compensation for the relevant fractions surrender such Certificates or Book Entry Shares. Subject to applicable Law, following surrender of shares of Parent Common Stock. As a result any such Certificates or Book Entry Shares, the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number the Registered Stockholder of shares of Parent Common Stock equal to (a) the product of such Certificates or such Book Entry Shares, as applicable, without interest (i) promptly after such surrender, such number of whole shares of Surviving Corporation Common Stock issued in exchange for the Offer Consideration shares of Company Common Stock represented by such Certificates or Book Entry Shares converted pursuant to Section 1.7(a), along with payment in lieu of fractional shares pursuant to Section 1.7(f), the amount of the Special Dividend payable in respect of such shares and the amount of any such dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such whole shares of Surviving Corporation Common Stock and (ii) at the number appropriate payment date, the amount of Shares held by such Minority Shareholder immediately before dividends or other distributions with a record date after the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the Effective Time and a payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation date subsequent to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance surrender payable with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver respect to each Minority Shareholder a number of such whole shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Surviving Corporation Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Samples: Merger Agreement
Exchange of Shares. (a) Prior As soon as practicable after the Effective Time, the Exchange Agent shall mail to each holder of record of one or more certificates of Company Common Stock whose shares are being converted into the Merger Consideration pursuant to Section 1.4 a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Acceptance Timecertificates of Company Common Stock shall pass, Buyer shall appoint a bank or trust company selected with the prior written approval only upon delivery of the certificates of Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment of the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating Common Stock to the Exchange Agent’s responsibilities under this Agreement, including ) and instructions for use in effecting the delivery, following the Expiration Time, surrender of the Offer Consideration certificates of Company Common Stock in exchange for the Merger Consideration. Upon proper surrender of a certificate of Company Common Stock for exchange and cancellation to the holders Exchange Agent, together with such properly completed letter of Shares validly tendered and not properly withdrawn pursuant transmittal, duly executed, the holder of such certificate of Company Common Stock shall be entitled to receive in exchange therefor the Offer as amount of the Acceptance TimeMerger Consideration provided in Section 1.4, and the implementation certificate of the Second Step DistributionCompany Common Stock so surrendered shall forthwith be cancelled. The Exchange Agent Agreement No interest shall be in form and substance reasonably satisfactory paid or accrued on any cash or on any unpaid dividends or distributions payable to the Companyholders of certificates of Company Common Stock.
(b) Buyer shallAfter the Effective Time, there shall be no transfers on the stock transfer books of the Company of the shares of Company Common Stock which were issued and Parent shall cause Buyer tooutstanding immediately prior to the Effective Time. If, depositafter the Effective Time, or cause any certificates of Company Common Stock representing such shares are presented for transfer to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust each such share shall be cancelled and exchanged for the benefit Merger Consideration provided in Section 1.4. In the event of a transfer of ownership of any share of Company Common Stock prior to the Effective Time that has not been registered in the transfer records of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance TimeCompany, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Merger Consideration payable in respect of such share of Company Common Stock shall be paid to the Offer (transferee of such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and share if the aggregate Fractional Share Cash Amount, certificate that previously represented such share is presented to the “Exchange Fund”). The Exchange Agent shall, pursuant accompanied by all documents required to irrevocable instructions, deliver evidence and effect such whole shares of Parent Common Stock contemplated transfer and to be issued pursuant to Section 2.01(b)evidence that any applicable stock transfer taxes have been paid.
(c) In the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with Any portion of the Exchange Agent, immediately Fund that remains unclaimed by the stockholders of the Company for 18 months after the effectuation Effective Time shall be paid to Parent. Any stockholders of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust Company who have not theretofore complied with this Article I shall thereafter look only to Parent for the benefit payment of the Minority Shareholders, evidence Merger Consideration deliverable in respect of Parent each share of Company Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Common Stock to which the Minority Shareholders become entitled stockholder holds as determined pursuant to this Agreement without any interest thereon. Notwithstanding the Second Step Distribution (together with any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shallforegoing, pursuant to irrevocable instructions none of Buyer and the Company (orCompany, if the Legal Merger is effectuatedParent, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Common Stock held by the Exchange Agent from time to time hereunder.
(e) None of Parent, the Company, Buyer or the Exchange Agent any other Person shall be liable to any Person in respect former holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Company Common Stock deposited pursuant to Section 2.13(c) and for any amount delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered good faith to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled theretolaws.
(fd) In the event any certificate of Company Common Stock shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Post-Offer Reorganization is effectuated and the Second Step Distribution is implementedPerson claiming such certificate of Company Common Stock to be lost, stolen or destroyed and, if reasonably required by Parent, the Buyer and the posting by such Person of a bond in such amount as Parent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such certificate of Company shall jointly advise, in accordance with Section 5.07Common Stock, the Exchange Agent shall issue in writing exchange for such lost, stolen or destroyed certificate of (i) the number of shares in Parent Company Common Stock the Merger Consideration such holder has a right to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled receive pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).Article I.
Appears in 1 contract
Samples: Merger Agreement (E Loan Inc)
Exchange of Shares. (a) Prior to the Acceptance Effective Time, the Buyer shall appoint a bank or trust company selected with the prior written approval of Exchange Agent to effect the Company (such approval not to be unreasonably withheldexchange for the Adjusted Merger Shares, delayed or conditioned) to act as exchange agent (such exchange agent, whichCash Consideration, if practicableany, shall also be and Preferred Cash Consideration of certificates that, immediately prior to the depositary Effective Time, represented Company Shares converted into Adjusted Merger Shares, Cash Consideration, if any, and Preferred Cash Consideration pursuant to Section 1.5 (including any Company Shares referred to in the Offerlast sentence of Section 1.6(a)) (the "Certificates"). On the Closing Date, the “Exchange Agent”) for the payment of the Offer Consideration and Buyer shall enter into an agreement (the “Exchange Agent Agreement”) relating deliver to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Certificates, a stock certificate (issued in the name of the Exchange Agent or its nominee) representing the Initial Shares validly tendered and not properly withdrawn pursuant an amount of cash equal to the Offer as of the Acceptance Time, the aggregate Fractional Share Preferred Cash Amount Consideration payable in the Offer to holders of Preferred Shares and shall depositpursuant to Section 1.5, and on the Registration Effectiveness Date the Buyer shall cause deliver to be deposited, with the Exchange Agent, at such timein trust for the benefit of holders of Certificates, evidence a stock certificate (issued in the name of Parent Common Stock in book-entry form (the Exchange Agent or certificates representing such Parent Common Stock, at Parent’s electionits nominee) representing the number of shares of Parent Common Stock sufficient to deliver difference, if any, between the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto Adjusted Initial Shares and the aggregate Fractional Share Initial Shares (the "Additional Initial Shares"), and Cash AmountConsideration, if any. As soon as practicable after the Effective Time, the “Buyer shall cause the Exchange Fund”Agent to send a notice and a transmittal form to each holder of a Certificate advising such holder of the effectiveness of the Merger and the procedure for surrendering to the Exchange Agent such Certificate in exchange for Initial Shares, Additional Initial Shares, Cash Consideration, if any, and Preferred Cash Consideration issuable or payable pursuant to Section 1.5, plus cash in lieu of any fractional shares, as provided in Section 1.8 below. Each holder of a Certificate, upon proper surrender thereof to the Exchange Agent in accordance with the instructions in such notice, shall be entitled to receive in exchange therefor (subject to any taxes required to be withheld) Initial Shares, Additional Initial Shares, Cash Consideration, if any, and Preferred Cash Consideration issuable or payable to such holder pursuant to Section 1.5 (but in no event shall such holder be entitled to receive a certificate representing such holder's Additional Initial Shares or Cash Consideration until after the Registration Effectiveness Date). The Exchange Agent shallUntil properly surrendered, each such Certificate shall be deemed for all purposes to evidence only the right to receive a certificate or certificates or payment, as applicable, for the Initial Shares, the Additional Initial Shares, the Cash Consideration, if any, and the Preferred Cash Consideration issuable or payable to such holder pursuant to irrevocable instructionsSection 1.5. Holders of Certificates shall not be entitled to receive certificates or certificates for Initial Shares or Additional Initial Shares, deliver or payment of any Cash Consideration or Preferred Cash Consideration, to which they would otherwise be entitled until such whole shares of Parent Common Stock contemplated Certificates are properly surrendered.
(b) If any Initial Shares, Additional Initial Shares, Cash Consideration or Preferred Cash Consideration are to be issued in the name of or paid to a person other than the person in whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition to the issuance and payment of such Initial Shares, Additional Initial Shares, Cash Consideration and Preferred Cash Consideration that (i) the Certificate so surrendered shall be transferable, and shall be properly assigned, endorsed or accompanied by appropriate stock powers, (ii) such transfer shall otherwise be proper and (iii) the person requesting such transfer shall pay to the Exchange Agent any transfer or other taxes payable by reason of the foregoing or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not required to be paid. Notwithstanding the foregoing, neither the Exchange Agent nor any Party shall be liable to a holder of Company Shares for any Initial Shares, Additional Initial Shares, Cash Consideration or Preferred Cash Consideration issuable or payable to such holder pursuant to Section 2.01(b)1.5 that are delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Post-Offer Reorganization is effectuated person claiming such Certificate to be lost, stolen or destroyed, the Buyer shallshall issue in exchange for such lost, and Parent shall cause Buyer to, deposit, stolen or cause destroyed Certificate the Initial Shares issuable in exchange therefor pursuant to be deposited, with the Exchange Agent, immediately after the effectuation Section 1.5. The Board of Directors of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may beBuyer may, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Common Stock to which the Minority Shareholders become entitled pursuant its discretion and as a condition precedent to the Second Step Distribution (together with issuance thereof, require the owner of such lost, stolen or destroyed Certificate to give the Buyer a bond in such sum as it may direct as indemnity against any dividends or distributions claim that may be made against the Buyer with respect to such Parent Common Stock). The Exchange Agent shallthe Certificate alleged to have been lost, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f)stolen or destroyed.
(d) The Exchange Agent shall not be entitled to vote No dividends or exercise any rights of ownership with respect to the Parent Common Stock held by the Exchange Agent from time to time hereunder.
(e) None of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed distributions that are payable to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, record of Buyer Common Stock as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier a date on which or after the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds Closing Date shall be paid to former Company Stockholders entitled by reason of the Minority Shareholders consistent with Merger to receive Initial Shares, Additional Initial Shares, Cash Consideration or Preferred Cash Consideration until such holders surrender their Certificates for certificates representing the procedures for payment Adjusted Merger Shares. Upon such surrender, the Buyer shall pay or deliver to the persons in whose name the certificates representing such Initial Shares, Additional Initial Shares, Cash Consideration Preferred Cash Consideration are issued any dividends or other distributions that are payable to the holders of cash in lieu record of fractional sharesBuyer Common Stock as of a date on or after the Closing Date and which were paid or delivered between the Effective Time and the time of such surrender; provided that the Buyer no such person shall be entitled to receive any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one interest on such dividends or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)distributions.
Appears in 1 contract
Samples: Merger Agreement (Affymetrix Inc)
Exchange of Shares. (a) Prior to the Acceptance Effective Time, Buyer Parent shall appoint a bank or trust company selected with the prior written approval of an exchange agent reasonably satisfactory to the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment purpose of exchanging Certificates for the Merger Consideration and for paying the Equity Award Amount. As soon as reasonably practicable after the Effective Time, Parent will cause the Exchange Agent to send to each holder of record of shares of Company Common Stock as of the Offer Effective Time whose shares of Company Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 2.6 a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall enter into an agreement (pass, only upon proper delivery of the “Exchange Agent Agreement”) relating Certificates to the Exchange Agent’s responsibilities under this Agreement), including instructions for use in effecting the delivery, following surrender of Certificates to the Expiration Exchange Agent in exchange for the Merger Consideration. Immediately after the Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, deposited with the Exchange AgentAgent cash in U.S. dollars sufficient to pay the aggregate Merger Consideration and the Equity Award Amount, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number each case in trust for each holder of shares of Parent Company Common Stock sufficient and each holder of a Company Stock-Based Award as required to deliver be paid pursuant to this Agreement. All cash deposited with the aggregate Offer Consideration payable Exchange Agent shall be referred to in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, this Agreement as the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock the Merger Consideration and Equity Award Amount contemplated to be issued paid pursuant to Section 2.01(b)2.6 and Section 2.7 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest the cash included in the Exchange Fund as directed by Parent. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by Parent or the Exchange Agent, will be entitled to receive the Merger Consideration in exchange therefor. The Merger Consideration shall be paid as promptly as practicable after receipt by the Exchange Agent of the Certificate and letter of transmittal in accordance with the foregoing. The Equity Award Amount shall be paid, in accordance with instructions from the Company, as promptly as practicable following the Effective Time. No interest shall be paid or accrued on any Merger Consideration. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all purposes only the right to receive such Merger Consideration.
(c) In If any portion of the event Merger Consideration is to be paid to a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition thereof that the Post-Offer Reorganization is effectuated surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Buyer shall, and Parent Person requesting such delivery of the Merger Consideration shall cause Buyer to, deposit, or cause pay to be deposited, with the Exchange Agent, immediately after Agent any required transfer or other similar Taxes or establish to the effectuation satisfaction of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger that such Tax has been paid or is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f)not payable.
(d) The Exchange Agent After the Effective Time, there shall not be entitled no further registration of transfers of shares of Company Common Stock outstanding immediately prior to vote or exercise the Effective Time. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights of ownership with respect to the Parent such shares of Company Common Stock held except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent from time to time hereunderor Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this ARTICLE II.
(e) None Any portion of the Exchange Fund that remains unclaimed by the holders of shares of Company Common Stock one (1) year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged his or her shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.9 prior to that time shall thereafter look only to Parent for delivery of the Merger Consideration in respect of such holder’s shares of Company Common Stock. Notwithstanding the foregoing, none of Parent, the Company, Buyer Merger Sub or the Exchange Agent Company shall be liable to any Person in respect holder of any portion shares of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Company Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and for any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawproperty Laws. Notwithstanding any other provision of this Agreement, any portion of the Offer Any Merger Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the remaining unclaimed by holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as shares of the second (2nd) anniversary of the Acceptance Time (or Company Common Stock immediately prior to such earlier date on which the Offer Consideration or time as such cash amounts would otherwise escheat to or become the property of any Governmental Authority), Entity shall, to the extent permitted by applicable Law, become the property of Parent, Parent free and clear of all any claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).
Appears in 1 contract
Exchange of Shares. (a) Prior to the Acceptance Effective Time, Buyer Parent shall appoint a bank or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as an exchange agent (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment purpose of exchanging Certificates for the Merger Consideration or the Alternative Merger Consideration, if applicable. As soon as reasonably practicable after the Effective Time, Parent will cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock as of the Offer Effective Time, whose shares of Company Common Stock were converted into the right to receive the Merger Consideration or the Alternative Merger Consideration, if applicable, pursuant to Section 2.7, a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall enter into an agreement (pass, only upon proper delivery of the “Exchange Agent Agreement”) relating Certificates to the Exchange Agent’s responsibilities under this Agreement), including instructions for use in effecting the deliverysurrender of Certificates to the Exchange Agent in exchange for the Merger Consideration or the Alternative Merger Consideration, following if applicable. Promptly after the Expiration Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, deposited with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing Agent the number of shares of Company Common Stock, shares of Parent Common Stock and Series CF Preferred Stock, if applicable, (which shall be in non-certificated book-entry form) payable upon due surrender of the Certificates pursuant to the provisions of this Article II. Following the Effective Time, Parent agrees to make available to the Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to deliver the aggregate Offer Consideration payable pay any dividends and other distributions pursuant to Section 2.10(f) and cash in the Offer (such lieu of fractional shares pursuant to Section 2.14. All cash and book-entry shares representing Parent Common Stock and Series CF Preferred Stock, together if applicable, deposited with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, Exchange Agent shall be referred to in this Agreement as the “Exchange Fund”). .” The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock the Merger Consideration or the Alternative Merger Consideration, if applicable, contemplated to be issued pursuant to Section 2.01(b)2.7 and Section 2.14 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent.
(cb) In Each holder of shares of Company Common Stock that have been converted into the event that right to receive the Post-Offer Reorganization is effectuated Merger Consideration or the Buyer shallAlternative Merger Consideration, if applicable, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale will be entitled to receive in exchange therefor (i) one or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence more shares of Parent Common Stock (which shall be in non-certificated book-entry form (or certificates representing such Parent Common Stockunless a physical certificate is requested) representing, at Parent’s election) representing in the aggregate, the whole number of shares of Parent Common Stock sufficient that such holder has the right to deliver receive, (ii) if applicable, one or more shares of Series CF Preferred Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Series CF Preferred Stock that such holder has the right to receive and (iii) a check in Parent Common Stock the amount, if any, that such holder has the right to which the Minority Shareholders become entitled receive as cash payable in lieu of fractional shares pursuant to the Second Step Distribution Section 2.14 and dividends and other distributions payable pursuant to Section 2.10(f) (together with less any dividends or distributions with respect to such Parent Common Stockrequired Tax withholding). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer Section 2.7 and this Article II. The Merger Consideration or the Company (orAlternative Merger Consideration, if the Legal Merger is effectuatedapplicable, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to shall be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Common Stock held paid as promptly as practicable after receipt by the Exchange Agent from time to time hereunder.
(e) None of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes Certificate and letter of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid transmittal in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or foregoing. No interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of or accrued on any Merger Consideration or Alternative Merger Consideration, if applicable, cash in lieu of fractional shares; provided that the Buyer shall be entitled shares or on any unpaid dividends and distributions payable to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f).holders of
Appears in 1 contract
Exchange of Shares. (a) Prior At the Closing, REDOX will cause to be issued and held for delivery to the Acceptance TimeMidnight Shareholders or their designees, Buyer shall appoint a bank or trust company selected with the prior written approval as applicable, stock certificates representing an aggregate of 256,144,130 shares of REDOX Common Stock, representing 73.27% of the Company (issued and outstanding REDOX Common Stock giving effect to such approval not issuance and the issuance of 8,962,500 shares of REDOX Common Stock issued pursuant to Section 3.01(q), in exchange for all of the issued and outstanding shares of Midnight Capital Stock to the Midnight Shareholders, as set forth on SCHEDULE B hereof. At the Closing, Midnight and the Midnight Shareholders will cause to be unreasonably withhelddelivered to REDOX, delayed stock certificates or conditioned) other evidence, as applicable, representing Midnight Capital Stock. The shares of REDOX Common Stock to act as exchange agent (such exchange agentbe issued will be authorized, whichbut theretofore unissued shares of REDOX Common Stock, if practicable, shall also and will be the depositary pursuant issued to the Offerrespective Midnight Shareholders at the Closing. REDOX hereby agrees to issue an additional 117,700,000 shares of REDOX Common Stock, the “Exchange Agent”) for the payment representing 6.73% of the Offer Consideration issued and outstanding REDOX Common Stock giving effect to such issuance. Such additional shares shall enter into an agreement (be issued as soon as practicable after the “Exchange Agent Agreement”) relating Closing, upon due authorization by the shareholders of REDOX to increase the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, number of the Offer Consideration to the holders authorized shares of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance TimeREDOX Common Stock, and the implementation acceptance by the Secretary of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory State of Delaware of an amendment to the Companycertificate of incorporation of REDOX to increase the number of authorized shares of REDOX Common Stock.
(b) Buyer shallAt the Closing, and Parent shall cause Buyer to, deposit, or REDOX will cause to be deposited, with the Exchange Agent, within two (2) Business Days after the Acceptance Time, in trust issued and held for the benefit of delivery to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as Midnight Warrants warrant agreements representing the REDOX Warrants in exchange for all of the Acceptance TimeMidnight Warrants, which will be delivered to Midnight at the aggregate Fractional Share Cash Amount payable in Closing. At the Offer to Closing, Midnight and the holders of Shares and shall deposit, and shall the Midnight Warrants will cause to be depositeddelivered to REDOX, with the Exchange Agentwarrant agreements or other evidence, at such timeas applicable, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, the “Exchange Fund”)Midnight Warrants. The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Stock contemplated REDOX Warrants to be issued pursuant will be authorized, but theretofore unissued REDOX Warrants, and will be issued to Section 2.01(b)the holders of the Midnight Warrants, as applicable, as set forth on SCHEDULE C hereof.
(c) In the event that the Post-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of All shares of Parent Common Stock sufficient to deliver the number of shares in Parent REDOX Common Stock to which be issued hereunder shall be deemed "RESTRICTED SECURITIES" as defined in paragraph (a) of Rule 144 under the Minority Shareholders become entitled pursuant to Securities Act of 1933, as amended (the Second Step Distribution (together with any dividends or distributions with respect to such Parent Common Stock"SECURITIES ACT"). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if Midnight Shareholders will represent in writing that they are acquiring said shares for investment purposes only and without the Legal Merger is effectuated, the Allotting Entity), deliver intent to make a further distribution of such shares. All shares of Parent REDOX Common Stock contemplated to be issued under the terms of this Agreement shall be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to an exemption from the Parent Common Stock held by the Exchange Agent from time to time hereunder.
(e) None of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion registration requirements of the Exchange Fund (including for purposes of this Securities Act, under Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c4(2) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated Securities Act and the Second Step Distribution is implemented, rules and regulations promulgated thereunder. Certificates representing the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing shares of (i) the number of shares in Parent REDOX Common Stock to which be issued hereunder shall bear a restrictive legend in substantially the Minority Table of Contents Shareholders of the Company (orfollowing form: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, if the Legal Merger is effectuatedAS AMENDED, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in EurosAND MAY NOT BE OFFERED FOR SALE, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorizedSOLD, acting as agent of the Company (orOR OTHERWISE DISPOSED OF, if the Legal Merger is effectuatedEXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION PROVISIONS, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
Appears in 1 contract
Samples: Share Exchange and Reorganization Agreement (Redox Technology Corp)
Exchange of Shares. (a) Prior to Immediately following the Acceptance Time, Buyer shall appoint a bank or trust company selected with the prior written approval issuance of the Company (such approval not to be unreasonably withheldPreferred Stock on the Closing Date, delayed or conditioned) to act as exchange agent (such exchange agentin accordance with, which, if practicable, shall also be the depositary and pursuant to the Offerterms of the Merger Agreement, the “Exchange Agent”Preferred Stock shall be cancelled and automatically converted into the right to receive, without interest, the Applicable Merger Consideration (as defined in the Merger Agreement) for the payment of the Offer Consideration Post-Merger Company, which shall be, and shall enter into an agreement (be referred to herein as the “Exchange Agent Agreement”) relating to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step DistributionPost-Merger Company Preferred Stock. The Exchange Agent Agreement Such Post-Merger Company Preferred Stock shall be in form and substance reasonably satisfactory delivered to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, each Purchaser by crediting to such Purchaser’s or cause to be deposited, with the Exchange Agent, its designee’s balance account within two (2) Business Trading Days after following the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares and shall deposit, and shall cause to be deposited, with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions with respect thereto and the aggregate Fractional Share Cash Amount, the “Exchange Fund”)Closing Date. The Exchange Agent shall, pursuant to irrevocable instructions, deliver such whole shares of Parent Common Post-Merger Company Preferred Stock contemplated to be issued pursuant to Section 2.01(b).
(c) In the event that and the Post-Offer Reorganization is effectuated Merger Conversion Shares shall have been registered on the Buyer shallPost Merger Company’s Form S-1, and Parent which shall cause Buyer tohave been declared effective by the Commission prior to the Closing Date. Notwithstanding anything to the contrary contained herein, depositin no event will any Post-Merger Company Preferred Stock, nor any Post-Merger Company Conversion Shares, be delivered with any restrictive legends or cause to be deposited, with any restrictions or limitations on resale by the Exchange Agent, immediately after the effectuation of the Asset SalePurchasers. If Fr8hub, the Post-Demerger Share Sale or Merger Company and/or the Post-Merger Share Sale, as the case may be, in trust for the benefit of the Minority Shareholders, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at ParentCompany’s election) representing the number of shares of Parent Common Stock sufficient to deliver the number of shares in Parent Common Stock to which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with Transfer Agent requires any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership legal opinions with respect to the Parent Common delivery of any Post-Merger Company Preferred Stock held by or Post-Merger Company Conversion Shares without restrictive legends or the Exchange Agent from time to time hereunder.
(e) None removal of Parentany such restrictive legends, the officers of Fr8hub, who shall become the officers of the Post- Merger Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Offer Consideration or the cash to be paid in accordance with this Article 2 remains undistributed to the holders of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor cause at the Post-Merger Share Sale has been effectuatedCompany’s expense, deliver its legal counsel to each Minority Shareholder a number of shares of Parent Common issue any such legal opinions. Such Post-Merger Company Preferred Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation shall be delivered in certificate form to such Minority Shareholder in lieu Purchaser. Upon conversion of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of any Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Merger Company Preferred Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation Company Conversion Shares shall be delivered to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer Purchaser by crediting to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under Purchaser’s or its designee’s balance account with The Depository Trust Company (c“DTC”) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and any cash compensation in lieu of through its fractional shares (if any) in accordance with this Section 2.13(f)Deposit / Withdrawal At Custodian system.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hudson Capital Inc.)
Exchange of Shares. (a) Prior On or prior to the Acceptance TimeClosing Date, Buyer Parent and the Company shall appoint agree upon and select a bank reputable bank, transfer agent or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent in the Merger (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for the payment of the Offer Consideration and Parent shall enter into an exchange agent agreement with the Exchange Agent (the “Exchange Agent Agreement”) relating to ). At the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration First Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, deposit with the Exchange Agent: (i) evidence of book-entry shares representing the Parent Common Stock, within two (2) Business Days after the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered Parent Convertible Preferred Stock and not properly withdrawn Parent Series X Preferred Stock issuable pursuant to the Offer as Section 1.6(a) and (ii) cash sufficient to make payments in lieu of the Acceptance Timefractional shares in accordance with Section 1.6(c). The Parent Common Stock, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares Parent Convertible Preferred Stock, Parent Series X Preferred Stock and shall deposit, and shall cause to be deposited, cash amounts so deposited with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions received by the Exchange Agent with respect thereto and the aggregate Fractional Share Cash Amountto such shares, are referred to collectively as the “Exchange Fund.”). The
(b) Promptly after the First Effective Time, the Parties shall cause the Exchange Agent shall, to mail or otherwise deliver pursuant to irrevocable instructionsthe Exchange Agent Agreement to the Persons who were record holders of shares of Company Capital Stock that were converted into the right to receive the Merger Consideration instructions for effecting the transfer of Book-Entry Shares in exchange for Parent Stock Payment Shares. Upon transfer of Book-Entry Share to the Exchange Agent for exchange, deliver together with such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Book-Entry Share shall be entitled to receive in exchange therefor book-entry shares representing the Merger Consideration (in a number of whole shares of Parent Common Stock contemplated and Parent Convertible Preferred Stock, or Parent Series X Preferred Stock, as applicable) that such holder has the right to be issued receive, subject to Section 1.6(b), pursuant to the provisions of Section 2.01(b1.6(a) (and cash in lieu of any fractional share of Parent Common Stock, Parent Convertible Preferred Stock or Parent Series X Preferred Stock, as applicable, pursuant to the provisions of Section 1.6(c).
); and (cB) In the event that the PostBook-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, Entry Share so surrendered or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Saletransferred, as the case may be, in trust for shall be canceled. Until surrendered or transferred as contemplated by this Section 1.8(b), each Book-Entry Share shall be deemed, from and after the benefit of First Effective Time, to represent only the Minority Shareholders, evidence of Parent Common Stock in right to receive book-entry form (or certificates representing such shares of Parent Common Stock, at Parent’s election) Parent Convertible Preferred Stock and/or Parent Series X Preferred Stock, as applicable, representing the number Merger Consideration (and cash in lieu of any fractional share of Parent Common Stock, Parent Convertible Preferred Stock or Parent Series X Preferred Stock, as applicable). In the event of a transfer of ownership of a Book-Entry Share that is not registered in the transfer records of the Company, payment of the Merger Consideration in respect of such Book-Entry Share may be made to a Person other than the Person in whose name such Book-Entry Share so surrendered or transferred is registered if such Book-Entry Share shall be properly transferred and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the transfer or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable. The Merger Consideration and any dividends or other distributions as are payable pursuant to Section 1.8(c) shall be deemed to have been in full satisfaction of all rights pertaining to Company Capital Stock formerly represented by such Book-Entry Shares.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock, Parent Convertible Preferred Stock and/or Parent Series X Preferred Stock, as applicable, with a record date on or after the First Effective Time shall be paid to the holder of any untransferred Book-Entry Shares with respect to the shares of Parent Common Stock, Parent Convertible Preferred Stock sufficient and/or Parent Series X Preferred Stock that such holder has the right to deliver receive in the number of shares in Parent Common Stock to Merger until such holder transfers such Book-Entry Share (at which the Minority Shareholders become entitled pursuant to the Second Step Distribution (together with any dividends or distributions with respect to such Parent Common Stock). The Exchange Agent shall, pursuant to irrevocable instructions of Buyer and the Company time (or, if later, on the Legal Merger is effectuatedapplicable payment date) such holder shall be entitled, the Allotting Entity), deliver such shares of Parent Common Stock contemplated to be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect subject to the Parent Common Stock held by the Exchange Agent from time to time hereunder.
(e) None effect of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this AgreementLaws, any to receive all such dividends and distributions, without interest).
(d) Any portion of the Offer Consideration or Exchange Fund that remains unclaimed by holders of shares of Company Capital Stock as of the cash date that is one year after the Closing Date shall be delivered to be paid Parent upon demand, and any holders of Book-Entry Shares who have not theretofore surrendered their transferred their Book-Entry Shares in accordance with this Article 2 remains undistributed Section 1.8 shall thereafter look only to the holders Parent for satisfaction of Sharestheir claims for Parent Common Stock, with respect to Shares validly tendered and not properly withdrawn pursuant to the OfferParent Convertible Preferred Stock and/or Parent Series X Preferred Stock, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such applicable, cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock, Parent Convertible Preferred Stock that such Minority Shareholders would otherwise be entitled and/or Parent Series X Preferred Stock, as applicable, and any dividends or distributions with respect to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent , Parent Convertible Preferred Stock and/or Parent Series X Preferred Stock, as applicable.
(e) No Party shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver be liable to each Minority Shareholder a number any holder of any shares of Company Capital Stock or to any other Person with respect to any shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation Parent Convertible Preferred Stock and/or Parent Series X Preferred Stock, as applicable (or any other consideration in dividends or distributions with respect of the Second Step Distribution other than the number of shares of Parent Common Stock and thereto) or for any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)amounts delivered to any public official pursuant to any applicable abandoned property Law, escheat Law or similar Law.
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Exchange of Shares. (a) Prior On or prior to the Acceptance TimeClosing Date, Buyer Parent and the Company shall appoint agree upon and select a bank reputable bank, transfer agent or trust company selected with the prior written approval of the Company (such approval not to be unreasonably withheld, delayed or conditioned) to act as exchange agent in the Merger (such exchange agent, which, if practicable, shall also be the depositary pursuant to the Offer, the “Exchange Agent”) for ). At the payment of the Offer Consideration and shall enter into an agreement (the “Exchange Agent Agreement”) relating to the Exchange Agent’s responsibilities under this Agreement, including the delivery, following the Expiration First Effective Time, of the Offer Consideration to the holders of Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time, and the implementation of the Second Step Distribution. The Exchange Agent Agreement shall be in form and substance reasonably satisfactory to the Company.
(b) Buyer shall, and Parent shall cause Buyer to, deposit, or cause to be deposited, deposit with the Exchange Agent, within two : (2i) Business Days after certificates or evidence of book-entry shares representing the Acceptance Time, in trust for the benefit of the holders of Shares validly tendered Parent Common Stock and not properly withdrawn Parent Convertible Preferred Stock issuable pursuant to the Offer as Section 1.6(a) and (ii) cash sufficient to make payments in lieu of the Acceptance Timefractional shares in accordance with Section 1.6(b). The Parent Common Stock, the aggregate Fractional Share Cash Amount payable in the Offer to holders of Shares Parent Convertible Preferred Stock and shall deposit, and shall cause to be deposited, cash amounts so deposited with the Exchange Agent, at such time, evidence of Parent Common Stock in book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Offer Consideration payable in the Offer (such cash and Parent Common Stock, together with any dividends or distributions received by the Exchange Agent with respect thereto and the aggregate Fractional Share Cash Amountto such shares, are referred to collectively as the “Exchange Fund.”). The
(b) Promptly after the First Effective Time, the Parties shall cause the Exchange Agent shallto mail to the Persons who were record holders of shares of Company Capital Stock that were converted into the right to receive the Merger Consideration: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (including a provision confirming that delivery of Company Stock Certificates or transfer of Book-Entry Shares to the Exchange Agent shall be effected, pursuant and risk of loss and title thereto shall pass, only upon proper delivery of such Company Stock Certificates or transfer of the Book-Entry Shares to irrevocable instructionsthe Exchange Agent); and (ii) instructions for effecting the surrender of Company Stock Certificates or transfer of Book-Entry Shares in exchange for shares of Parent Common Stock. Upon surrender of a Company Stock Certificate or transfer of Book-Entry Share to the Exchange Agent for exchange, deliver together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book-Entry Share shall be entitled to receive in exchange therefor book-entry shares representing the Merger Consideration (in a number of whole shares of Parent Common Stock contemplated and Parent Convertible Preferred Stock) that such holder has the right to be issued receive pursuant to the provisions of Section 2.01(b1.6(a) (and cash in lieu of any fractional share of Parent Common Stock or Parent Convertible Preferred Stock pursuant to the provisions of Section 1.6(b).
); and (cB) In the event that the PostCompany Stock Certificate or Book-Offer Reorganization is effectuated the Buyer shall, and Parent shall cause Buyer to, deposit, Entry Share so surrendered or cause to be deposited, with the Exchange Agent, immediately after the effectuation of the Asset Sale, the Post-Demerger Share Sale or the Post-Merger Share Saletransferred, as the case may be, in trust for shall be canceled. Until surrendered or transferred as contemplated by this Section 1.8(b), each Company Stock Certificate or Book-Entry Share shall be deemed, from and after the benefit of First Effective Time, to represent only the Minority Shareholders, evidence of Parent Common Stock in right to receive book-entry form (or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver and Parent Convertible Preferred Stock representing the number Merger Consideration (and cash in lieu of shares in any fractional share of Parent Common Stock to which the Minority Shareholders become entitled pursuant or Parent Convertible Preferred Stock). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the Second Step Distribution (together with delivery of any dividends shares of Parent Common Stock, require the owner of such lost, stolen or distributions destroyed Company Stock Certificate to provide an applicable affidavit with respect to such Company Stock Certificate that includes an obligation of such owner to indemnify Parent against any claim suffered by Parent related to the lost, stolen or destroyed Company Stock Certificate as Parent may reasonably request. In the event of a transfer of ownership of a Company Stock Certificate or Book-Entry Share that is not registered in the transfer records of the Company, payment of the Merger Consideration in respect of such Company Stock Certificate or Book-Entry Share may be made to a Person other than the Person in whose name such Company Stock Certificate or Book-Entry Share so surrendered or transferred is registered if such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the transfer or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable. The Merger Consideration and any dividends or other distributions as are payable pursuant to Section 1.8(c) shall be deemed to have been in full satisfaction of all rights pertaining to Company Capital Stock formerly represented by such Company Stock Certificates or Book-Entry Shares.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock). The Exchange Agent shall, pursuant Stock or Parent Convertible Preferred Stock with a record date on or after the First Effective Time shall be paid to irrevocable instructions the holder of Buyer and any unsurrendered Company Stock Certificate or Book-Entry Shares with respect to the Company (or, if the Legal Merger is effectuated, the Allotting Entity), deliver such shares of Parent Common Stock contemplated and/or Parent Convertible Preferred Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate or transfers such Book-Entry Shares or provides an affidavit of loss or destruction in lieu thereof in accordance with this Section 1.8 (at which time (or, if later, on the applicable payment date) such holder shall be issued pursuant to Section 2.13(f).
(d) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect entitled, subject to the Parent Common Stock held by the Exchange Agent from time to time hereunder.
(e) None effect of Parent, the Company, Buyer or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund (including for purposes of this Section 2.13, any shares in Parent Common Stock deposited pursuant to Section 2.13(c) and delivered pursuant to Section 2.13(f) and any cash received from the sale of shares in Parent Common Stock as set forth in Section 2.13(f)) or the Offer Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this AgreementLaws, any to receive all such dividends and distributions, without interest).
(d) Any portion of the Offer Consideration Exchange Fund that remains unclaimed by holders of shares of Company Capital Stock as of the date that is one year after the Closing Date shall be delivered to Parent upon demand, and any holders of Company Stock Certificates or the cash to be paid Book-Entry Shares who have not theretofore surrendered their Company Stock Certificates or transferred their Book-Entry Shares in accordance with this Article 2 remains undistributed Section 1.8 shall thereafter look only to the holders Parent for satisfaction of Shares, with respect to Shares validly tendered and not properly withdrawn pursuant to the Offer, as of the second (2nd) anniversary of the Acceptance Time (or immediately prior to such earlier date on which the Offer Consideration or such cash would otherwise escheat to or become the property of any Governmental Authority), shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all their claims or interest of any Person previously entitled thereto.
(f) In the event that the Post-Offer Reorganization is effectuated and the Second Step Distribution is implemented, the Buyer and the Company shall jointly advise, in accordance with Section 5.07, the Exchange Agent in writing of (i) the number of shares in for Parent Common Stock to which the Minority Table of Contents Shareholders of the Company (orand Parent Convertible Preferred Stock, if the Legal Merger is effectuated, the Allotting Entity) become entitled pursuant to the Second Step Distribution (prior to giving effect to any Tax withholding) and (ii) the amount of Dutch dividend withholding Tax in respect of the Second Step Distribution that is required to be withheld and remitted to the competent Tax authority in Euros (the aggregate amount of such Dutch dividend withholding Tax in Euros, the “Aggregate Withholding Amount”). The Exchange Agent shall be authorized, acting as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) and for the account of the Minority Shareholders as taxpayers of the applicable Dutch dividend withholding Tax, to sell, in one or more transactions such number of shares of Parent Common Stock to which the shareholders would otherwise be entitled as is necessary to obtain in Dollars an amount in net cash proceeds that converted in Euros is as close as possible to, but no less than, the Aggregate Withholding Amount (the “Parent Common Stock Sale). From the net cash proceeds obtained pursuant to the Parent Common Stock Sale the Exchange Agent shall, as soon as possible, remit to the competent Tax authority the Aggregate Withholding Amount as agent of the Company (or, if the Legal Merger is effectuated, the Allotting Entity), as withholding agent (inhoudingsplichtige) or transfer to the Company (or, if the Legal Merger is effectuated, the Allotting Entity) the Aggregate Withholding Amount to enable the Company (or, if the Legal Merger is effectuated, the Allotting Entity) as withholding agent (inhoudingsplichtige) to remit the Aggregate Withholding Amount to the competent Tax authority. In the event that the net cash proceeds obtained by the Exchange Agent pursuant to the Parent Common Stock Sale exceed the Aggregate Withholding Amount, such surplus cash proceeds shall be paid to the Minority Shareholders consistent with the procedures for payment of cash in lieu of fractional shares; provided that the Buyer shall be entitled to any surplus if the amount thereof is de minimis. The Exchange Agent shall be instructed and authorized to sell, in one or more transactions, an additional number of shares of Parent Common Stock on behalf of and for the benefit of Minority Shareholders to the extent necessary to make payments to each individual Minority Shareholder in lieu of fractional shares of Parent Common Stock that such Minority Shareholders would otherwise be entitled and Parent Convertible Preferred Stock and any dividends or distributions with respect to receive after withholding of applicable Taxes (including Dutch dividend withholding Tax), including through the Parent Common Stock Sale, whereby the net cash proceeds of such additional share sales shall determine the compensation for the relevant fractions of shares of Parent Common Stock. As a result the Exchange Agent shall (x) (A) in case neither the Conversion nor the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) the number of Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), (B) in case the Conversion has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of Post-Conversion Shares held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f), or (C) in case the Post-Merger Share Sale has been effectuated, deliver to each Minority Shareholder a number of shares of Parent Common Stock equal to (a) the product of (i) the Offer Consideration and (ii) one-fifth (1/5th) of the number of shares in the capital of the Allotting Entity held by such Minority Shareholder immediately before the Second Step Distribution minus (b) the number of Parent Common Stock sold by the Exchange Agent to satisfy the payment of the individual Dutch dividend withholding Tax liability of such Minority Shareholder minus (c) the number of Parent Common Stock sold by the Exchange Agent to make a cash compensation to such Minority Shareholder in lieu of its individual fractional shares (if any) in accordance with the previous sentence of this Section 2.13(f) and (y) transfer to such Minority Shareholder the cash compensation to which such Minority Shareholder Table of Contents is entitled under (c) above. Banks and other financial institutions may charge administrative costs to Minority Shareholders in relation to the transfer of the Second Step Distribution to their accounts, for which no compensation will be paid to such Minority Shareholders. For the avoidance of doubt, no Minority Shareholder shall have a further right to Parent Common Stock, cash compensation or any other consideration in respect of the Second Step Distribution other than the number of shares of Parent Common Stock and Parent Convertible Preferred Stock.
(e) No Party shall be liable to any holder of any shares of Company Capital Stock or to any other Person with respect to any shares of Parent Common Stock or Parent Convertible Preferred Stock (or dividends or distributions with respect thereto) or for any cash compensation in lieu of its fractional shares (if any) in accordance with this Section 2.13(f)amounts delivered to any public official pursuant to any applicable abandoned property Law, escheat Law or similar Law.
Appears in 1 contract
