Exchange of Stock Certificates. Certificates (or evidence of shares in book entry form) for shares of Company Common Stock shall be exchanged for the Merger Consideration in accordance with the following procedures: (a) Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company to act as paying agent under this Agreement (the "Paying Agent") and who shall serve pursuant to an agreement between Parent and the Paying Agent. Prior to the Effective Time, Parent shall deliver or cause to be delivered to the Paying Agent, in trust for the benefit of the holders of Company Common Stock, an amount in cash equal to the Merger Consideration multiplied by the number of shares of Company Common Stock to be converted in the Merger (the "Exchange Fund"). The Paying Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the aggregate amounts payable under Section 4.1(a) shall be promptly returned to the Surviving Corporation. To the extent that there are any losses with respect to any such investments, or the Exchange Fund diminishes for any reason below the level required for the Paying Agent to make prompt cash payment under Section 4.1(a), Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Paying Agent to make such aggregate payments under Section 4.1(a). (b) As promptly as practicable after the Effective Time, but in no event later than five (5) Business Days following the Effective Time, Parent shall cause the Paying Agent to mail to each holder of record of Company Common Stock a form of letter of transmittal (the "Letter of Transmittal") (which shall specify that delivery shall be effected, and risk of loss and title to the certificates shall pass, only upon delivery of the certificates to the Paying Agent and shall be in such form and have such other provisions (including customary provisions with respect to delivery of an "agent's message" with respect to shares held in book-entry form) as Parent may specify, subject to the Company's reasonable approval), together with instructions thereto. Upon (i) in the case of shares of Company Common Stock represented by a certificate, the surrender of such certificate for cancellation to the Paying Agent, or (ii) in the case of shares of Company Common Stock held in book-entry form, the receipt of an "agent's message" by the Paying Agent, in each case together with the Letter of Transmittal, duly, completely and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such shares shall be entitled to receive (and the Paying Agent shall deliver) a bank check for an amount equal to the Merger Consideration multiplied by the number of shares of Company Common Stock to be converted in the Merger. (c) In no event shall the holder of any surrendered certificates (or evidence of shares in book entry form) be entitled to receive interest on any of the Merger Consideration to be received in the Merger. (d) If any check for the Merger Consideration is to be issued in the name of a Person other than the Person in whose name the certificates (or electronic equivalents) surrendered for exchange therefor are registered, it shall be a condition of the exchange that the certificate so surrendered shall be endorsed or shall otherwise be in proper form for transfer, and that the Person requesting such exchange shall pay to the Paying Agent any transfer or other taxes required by reason of issuance of such check to a Person other than the registered holder of the certificates (or electronic equivalents) surrendered, or shall establish to the satisfaction of the Paying Agent that such tax has been paid or is not applicable. (e) If for any reason (including losses) the Paying Agent shall not have sufficient funds to pay the amounts to which holders of Company Common Stock are entitled under this Article IV, Parent and the Surviving Corporation shall take all steps necessary to promptly deposit with the Paying Agent additional cash sufficient to make all payments required under this Article IV. Any funds deposited with the Paying Agent (including any interest received with respect thereto) that remain undistributed to the holders of Company Common Stock for twelve (12) months after the Effective Time shall be delivered to Parent, upon demand, and any holder of Company Common Stock who has not theretofore complied with this Article IV shall thereafter look only to Parent and Surviving Corporation for payment of its claim for Merger Consideration, without any interest thereon. (f) If any certificate shall have been lost, stolen or destroyed, then, 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 the Paying Agent, the posting by such Person of a bond, in such amount as Parent or the Paying Agent may reasonably direct, as indemnity against any claim that may be made against it with respect to such certificate, Parent shall direct the Paying Agent to issue, in exchange for such lost, stolen or destroyed certificate, the Merger Consideration to be paid in respect of the shares of Company Common Stock represented by such certificate, as contemplated by this Article IV. (g) None of the Company, Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. (h) Except for the right to surrender of the certificate(s) (or evidence of shares in book entry form) representing the Company Common Stock in exchange for the right to receive the Merger Consideration with respect to each share of Company Common Stock, all shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and shall cease to exist at the Effective Time and each holder of Company Common Stock shall cease to have any rights as a stockholder of the Company, and no transfer of Company Common Stock shall thereafter be made on the stock transfer books of the Surviving Corporation.
Appears in 1 contract
Exchange of Stock Certificates. Certificates (or evidence of shares in book book-entry form) for representing shares of Company Common Stock shall be exchanged for the Merger Consideration in accordance with the following procedures:
(a) Prior to the Effective Time, Parent shall appoint an a bank, trust company or transfer agent reasonably acceptable to the Company to act as paying agent under this Agreement (the "“Paying Agent"”) and who shall serve pursuant to an agreement between Parent and the Paying AgentAgent (the “Paying Agent Agreement”), a copy of which Paying Agent Agreement shall be provided to the Company and its counsel for its review and comment prior to its execution by Parent and the Paying Agent and which comments shall be given good faith consideration by Parent and its counsel. Prior to the Effective Time, Parent shall deliver or cause deliver, by wire transfer of immediately available funds, to be delivered to an account designated in writing by the Paying Agent, in trust for the benefit of the holders of Company Common Stock, an amount in cash equal to the Merger Consideration multiplied by the number of shares of Company Common Stock to be converted in the Merger (the "“Exchange Fund"). The Paying Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the aggregate amounts payable under Section 4.1(a) shall be promptly returned to the Surviving Corporation. To the extent that there are any losses with respect to any such investments, or the Exchange Fund diminishes for any reason below the level required for the Paying Agent to make prompt cash payment under Section 4.1(a), Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Paying Agent to make such aggregate payments under Section 4.1(a”).
(b) As promptly as practicable after the Effective Time, but in no event later than five (5) Business Days following the Effective Time, Parent shall cause the Paying Agent to mail to each holder of record of Company Common Stock a form of letter of transmittal (the "“Letter of Transmittal"”) (which shall specify that delivery shall be effected, and risk of loss and title to the certificates shall pass, only upon delivery of the certificates to the Paying Agent and shall be in such form and have such other provisions (including customary provisions with respect to delivery of an "“agent's ’s message" ” with respect to shares held in book-entry form) as Parent may specify, subject to the Company's ’s reasonable approval), together with instructions thereto. Upon (i) in the case of shares of Company Common Stock represented by a certificate, the surrender of such certificate for cancellation to the Paying Agent, Agent or (ii) in the case of shares of Company Common Stock held in book-entry form, the receipt of an "“agent's ’s message" ” by the Paying Agent, in each case together with the Letter of Transmittal, duly, completely and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such shares of Company Common Stock shall be entitled to receive (and the Paying Agent shall deliver) a bank check for an amount equal to the Merger Consideration multiplied by the number of shares of Company Common Stock to be converted in the Mergerconverted.
(c) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred by a holder of Company Common Stock in connection with the Merger, and the filing of any related Tax Returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.
(d) In no event shall the holder of any surrendered certificates (or evidence of shares in book book-entry form) representing Company Common Stock be entitled to receive interest on any of the Merger Consideration to be received in the MergerConsideration.
(de) If any check for the payment equal to the Merger Consideration is to be issued in the name of made to a Person other than the Person in whose name the certificates surrendered certificate (or electronic equivalentsevidence of shares in book-entry form) surrendered for exchange therefor are registeredformerly evidencing shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of the exchange payment that the certificate (or evidence of shares in book-entry form) so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and that the Person requesting such exchange payment shall pay to the Paying Agent any have paid all transfer or and other taxes required by reason of issuance the payment of such check the Merger Consideration to a Person other than the registered holder of the certificates certificate (or electronic equivalentsevidence of shares in book-entry form) surrendered, or shall establish have established to the satisfaction of the Paying Agent and Parent that such tax has taxes either have been paid or is are not applicable.
(ef) If for At any reason time following the twelfth (including losses12th) month after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds which had been made available to the Paying Agent and not disbursed to holders of shares of Company Common Stock (including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to Parent (subject to abandoned property, escheat and other similar laws) only as general creditors thereof with respect to any Merger Consideration that may be payable upon due surrender of the certificates (or evidence of shares in book-entry form) held by them. Notwithstanding the foregoing, neither Parent, Merger Sub nor the Paying Agent shall not have sufficient funds be liable to pay the amounts to which holders any holder of Company Common Stock are entitled under this Article IV, Parent and the Surviving Corporation shall take all steps necessary to promptly deposit with the Paying Agent additional cash sufficient to make all payments required under this Article IV. Any funds deposited with the Paying Agent (including any interest received with respect thereto) that remain undistributed to the holders shares of Company Common Stock for twelve (12) months after the Effective Time shall be any Merger Consideration delivered in respect of such shares to Parenta public official pursuant to any abandoned property, upon demand, and any holder of Company Common Stock who has not theretofore complied with this Article IV shall thereafter look only to Parent and Surviving Corporation for payment of its claim for Merger Consideration, without any interest thereonescheat or other similar law.
(fg) If any certificate shall have been lost, stolen or destroyed, then, 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 the Paying Agent, the posting by such Person of a bond, in such amount as Parent or the Paying Agent may reasonably direct, as indemnity against any claim that may be made against it with respect to such certificate, Parent shall direct the Paying Agent to issuepay, in exchange for such lost, stolen or destroyed certificate, the Merger Consideration to be paid in respect of the shares of Company Common Stock represented by such certificate, as contemplated by this Article IV.
(gh) None The Paying Agent shall invest any of the Companyfunds deposited with the Paying Agent as directed by Parent; provided, however, that such investments shall be in obligations of or guaranteed by the United States of America or any agency or instrumentality thereof and backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank that are then publicly available). Any net profit resulting from, or interest or income produced by, such investments shall be payable to Parent or an affiliate of Parent as Parent directs; provided, however, that any net loss resulting from such investments shall be promptly reimbursed by Parent to the Exchange Fund upon demand by the Paying Agent. No investment of the Merger Consideration funds shall relieve Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash from the making payments required by this Article IV. The Exchange Fund properly delivered to a public official pursuant to shall not be used for any applicable abandoned property, escheat or similar Lawpurpose other than as set forth in Section 4.2(a).
(hi) Except for At the right to surrender close of business on the day of the certificate(s) (or evidence Effective Time, the stock transfer books of shares in book entry form) representing the Company Common Stock in exchange for the right to receive the Merger Consideration with respect to each share shall be closed and thereafter there shall be no further registration of Company Common Stock, all transfers of shares of Company Common Stock shall no longer be outstanding on the records of the Company. From and shall automatically be cancelled and shall cease to exist at after the Effective Time and each holder Time, the holders of shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as a stockholder of the Company, and no transfer of Company Common Stock shall thereafter be made on the stock transfer books of the Surviving Corporationotherwise provided herein or by applicable Law.
Appears in 1 contract
Exchange of Stock Certificates. Certificates (or evidence of shares in book entry form) for shares of Company Common Stock shall be exchanged for the Merger Consideration in accordance with the following procedures:
(a) Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company to act as paying agent under this Agreement (the "“Paying Agent"”) and who shall serve pursuant to an agreement between Parent and the Paying Agent. Prior to the Effective Time, Parent shall deliver or cause to be delivered to the Paying Agent, in trust for the benefit of the holders of Company Common Stock, an amount in cash equal to the Merger Consideration multiplied by the number of shares of Company Common Stock to be converted in the Merger (the "“Exchange Fund"”). The Paying Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the aggregate amounts payable under Section 4.1(a) shall be promptly returned to the Surviving Corporation. To the extent that there are any losses with respect to any such investments, or the Exchange Fund diminishes for any reason below the level required for the Paying Agent to make prompt cash payment under Section 4.1(a), Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Paying Agent to make such aggregate payments under Section 4.1(a).
(b) As promptly as practicable after the Effective Time, but in no event later than five (5) Business Days following the Effective Time, Parent shall cause the Paying Agent to mail to each holder of record of Company Common Stock a form of letter of transmittal (the "“Letter of Transmittal"”) (which shall specify that delivery shall be effected, and risk of loss and title to the certificates shall pass, only upon delivery of the certificates to the Paying Agent and shall be in such form and have such other provisions (including customary provisions with respect to delivery of an "“agent's ’s message" ” with respect to shares held in book-entry form) as Parent may specify, subject to the Company's ’s reasonable approval), together with instructions thereto. Upon (i) in the case of shares of Company Common Stock represented by a certificate, the surrender of such certificate for cancellation to the Paying Agent, or (ii) in the case of shares of Company Common Stock held in book-entry form, the receipt of an "“agent's ’s message" ” by the Paying Agent, in each case together with the Letter of Transmittal, duly, completely and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such shares shall be entitled to receive (and the Paying Agent shall deliver) a bank check for an amount equal to the Merger Consideration multiplied by the number of shares of Company Common Stock to be converted in the Merger.
(c) In no event shall the holder of any surrendered certificates (or evidence of shares in book entry form) be entitled to receive interest on any of the Merger Consideration to be received in the Merger.
(d) If any check for the Merger Consideration is to be issued in the name of a Person other than the Person in whose name the certificates (or electronic equivalents) surrendered for exchange therefor are registered, it shall be a condition of the exchange that the certificate so surrendered shall be endorsed or shall otherwise be in proper form for transfer, and that the Person requesting such exchange shall pay to the Paying Agent any transfer or other taxes required by reason of issuance of such check to a Person other than the registered holder of the certificates (or electronic equivalents) surrendered, or shall establish to the satisfaction of the Paying Agent that such tax has been paid or is not applicable.
(e) If for any reason (including losses) the Paying Agent shall not have sufficient funds to pay the amounts to which holders of Company Common Stock are entitled under this Article IV, Parent and the Surviving Corporation shall take all steps necessary to promptly deposit with the Paying Agent additional cash sufficient to make all payments required under this Article IV. Any funds deposited with the Paying Agent (including any interest received with respect thereto) that remain undistributed to the holders of Company Common Stock for twelve (12) months after the Effective Time shall be delivered to Parent, upon demand, and any holder of Company Common Stock who has not theretofore complied with this Article IV shall thereafter look only to Parent and Surviving Corporation for payment of its claim for Merger Consideration, without any interest thereon.
(f) If any certificate shall have been lost, stolen or destroyed, then, 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 the Paying Agent, the posting by such Person of a bond, in such amount as Parent or the Paying Agent may reasonably direct, as indemnity against any claim that may be made against it with respect to such certificate, Parent shall direct the Paying Agent to issue, in exchange for such lost, stolen or destroyed certificate, the Merger Consideration to be paid in respect of the shares of Company Common Stock represented by such certificate, as contemplated by this Article IV.
(g) None of the Company, Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(h) Except for the right to surrender of the certificate(s) (or evidence of shares in book entry form) representing the Company Common Stock in exchange for the right to receive the Merger Consideration with respect to each share of Company Common Stock, all shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and shall cease to exist at the Effective Time and each holder of Company Common Stock shall cease to have any rights as a stockholder of the Company, and no transfer of Company Common Stock shall thereafter be made on the stock transfer books of the Surviving Corporation.
Appears in 1 contract
Exchange of Stock Certificates. Certificates (or evidence of shares in book book-entry form) for representing shares of Company Common Stock shall be exchanged for the Merger Consideration in accordance with the following procedures:
(a) Prior to the Effective Time, Parent shall appoint an a bank, trust company or transfer agent reasonably acceptable to the Company to act as paying agent under this Agreement (the "“Paying Agent"”) and who shall serve pursuant to an agreement between Parent and the Paying AgentAgent (the “Paying Agent Agreement”), a copy of which Paying Agent Agreement shall be provided to the Company and its counsel for its review and comment prior to its execution by Parent and the Paying Agent and which comments shall be given good faith consideration by Parent and its counsel. Prior to the Effective Time, Parent shall deliver or cause deliver, by wire transfer of immediately available funds, to be delivered to an account designated in writing by the Paying Agent, in trust for the benefit of the holders of Company Common Stock, an amount in cash equal to the Merger Consideration multiplied by the number of shares of Company Common Stock to be converted in the Merger (the "“Exchange Fund"). The Paying Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the aggregate amounts payable under Section 4.1(a) shall be promptly returned to the Surviving Corporation. To the extent that there are any losses with respect to any such investments, or the Exchange Fund diminishes for any reason below the level required for the Paying Agent to make prompt cash payment under Section 4.1(a), Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Paying Agent to make such aggregate payments under Section 4.1(a”).
(b) As promptly as practicable after the Effective Time, but in no event later than five (5) Business Days following the Effective Time, Parent shall cause the Paying Agent to mail to each holder of record of Company Common Stock a form of letter of transmittal (the "“Letter of Transmittal"”) (which shall specify that delivery shall be effected, and risk of loss and title to the certificates shall pass, only upon delivery of the certificates to the Paying Agent and shall be in such form and have such other provisions (including customary provisions with respect to delivery of an "“agent's ’s message" ” with respect to shares held in book-entry form) as Parent may specify, subject to the Company's ’s reasonable approval), together with instructions thereto. Upon (i) in the case of shares of Company Common Stock represented by a certificate, the surrender of such certificate for cancellation to the Paying Agent, Agent or (ii) in the case of shares of Company Common Stock held in book-entry form, the receipt of an "“agent's ’s message" ” by the Paying Agent, in each case together with the Letter of Transmittal, duly, completely and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such shares of Company Common Stock shall be entitled to receive (and the Paying Agent shall deliver) a bank check for an amount equal to the Merger Consideration multiplied by the number of shares of Company Common Stock to be converted in the Mergerconverted.
(c) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred by a holder of Company Common Stock in connection with the Merger, and the filing of any related Tax Returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.
(d) In no event shall the holder of any surrendered certificates (or evidence of shares in book book-entry form) representing Company Common Stock be entitled to receive interest on any of the Merger Consideration to be received in the MergerConsideration.
(de) If any check for the payment equal to the Merger Consideration is to be issued in the name of made to a Person other than the Person in whose name the certificates surrendered certificate (or electronic equivalentsevidence of shares in book-entry form) surrendered for exchange therefor are registeredformerly evidencing shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of the exchange payment that the certificate (or evidence of shares in book-entry form) so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and that the Person requesting such exchange payment shall pay to the Paying Agent any have paid all transfer or and other taxes required by reason of issuance the payment of such check the Merger Consideration to a Person other than the registered holder of the certificates certificate (or electronic equivalentsevidence of shares in book-entry form) surrendered, or shall establish have established to the satisfaction of the Paying Agent and Parent that such tax has taxes either have been paid or is are not applicable.
(ef) If for At any reason time following the twelfth (including losses12th) month after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds which had been made available to the Paying Agent and not disbursed to holders of shares of Company Common Stock (including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to Parent (subject to abandoned property, escheat and other similar laws) only as general creditors thereof with respect to any Merger Consideration, without interest, that may be payable upon due surrender of the certificates (or evidence of shares in book-entry form) held by them. Notwithstanding the foregoing, neither Parent, Merger Sub nor the Paying Agent shall not have sufficient funds be liable to pay the amounts to which holders any holder of Company Common Stock are entitled under this Article IV, Parent and the Surviving Corporation shall take all steps necessary to promptly deposit with the Paying Agent additional cash sufficient to make all payments required under this Article IV. Any funds deposited with the Paying Agent (including any interest received with respect thereto) that remain undistributed to the holders shares of Company Common Stock for twelve (12) months after the Effective Time shall be any Merger Consideration delivered in respect of such shares to Parenta public official pursuant to any abandoned property, upon demand, and any holder of Company Common Stock who has not theretofore complied with this Article IV shall thereafter look only to Parent and Surviving Corporation for payment of its claim for Merger Consideration, without any interest thereonescheat or other similar law.
(fg) If any certificate shall have been lost, stolen or destroyed, then, 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 the Paying Agent, the posting by such Person of a bond, in such amount as Parent or the Paying Agent may reasonably direct, as indemnity against any claim that may be made against it with respect to such certificate, Parent shall direct the Paying Agent to issuepay, in exchange for such lost, stolen or destroyed certificate, the Merger Consideration to be paid in respect of the shares of Company Common Stock represented by such certificate, as contemplated by this Article IV.
(gh) None The Paying Agent shall invest any of the Companyfunds deposited with the Paying Agent as directed by Parent; provided, however, that (i) such investments shall be in short-term obligations of or guaranteed by the United States of America or any agency or instrumentality thereof and backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank that are then publicly available), and (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Parent or an affiliate of Parent as Parent directs; provided, however, that any net loss resulting from such investments shall be promptly reimbursed by Parent to the Exchange Fund upon demand by the Paying Agent. No investment of the Merger Consideration funds shall relieve Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash from the making payments required by this Article IV. The Exchange Fund properly delivered to a public official pursuant to shall not be used for any applicable abandoned property, escheat or similar Lawpurpose other than as set forth in Section 4.2(a).
(hi) Except for At the right to surrender Effective Time, the stock transfer books of the certificate(s) (or evidence Company shall be closed and thereafter there shall be no further registration of shares in book entry form) representing the Company Common Stock in exchange for the right to receive the Merger Consideration with respect to each share transfers of Company Common Stock, all shares of Company Common Stock shall no longer be outstanding on the records of the Company. From and shall automatically be cancelled and shall cease to exist at after the Effective Time and each holder Time, the holders of shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as a stockholder of the Company, and no transfer of Company Common Stock shall thereafter be made on the stock transfer books of the Surviving Corporationotherwise provided herein or by applicable Law.
Appears in 1 contract
Exchange of Stock Certificates. Certificates (or evidence of shares in book entry form) for shares of Company Common Stock shall be exchanged for the Merger Consideration in accordance with the following procedures:
(a) Prior to The purchasers of Mt. Xxxx Common Stock in the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company to act as paying agent under this Agreement (the "Paying Agent") and who shall serve pursuant to an agreement between Parent and the Paying Agent. Prior to the Effective Time, Parent shall deliver or cause to be delivered to the Paying Agent, in trust Offering will automatically receive stock certificates for the benefit shares of the holders Parent Common Stock which are issued as merger consideration for their shares of Company Mt. Xxxx Common Stock, an amount in cash equal to the Merger Consideration multiplied Stock as required by Section 1.6 and as contemplated by the number of shares of Company Common Stock to be converted subscription agreements executed in connection with the Merger (the "Exchange Fund"). The Paying Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the aggregate amounts payable under Section 4.1(a) shall be promptly returned to the Surviving Corporation. To the extent that there are any losses with respect to any such investments, or the Exchange Fund diminishes for any reason below the level required for the Paying Agent to make prompt cash payment under Section 4.1(a), Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Paying Agent to make such aggregate payments under Section 4.1(a)Offering.
(b) As promptly Holders of Mt. Xxxx Common Stock issued prior to the Offering will receive a letter of transmittal directing them to send their certificates to Parent for exchange as practicable after set forth in this Section 1.12(b).
(1) On or prior to the Effective TimeClosing Date, but in no event later than five Mt. Xxxx shall prepare a schedule identifying (5i) all Mt. Xxxx Stockholders and (ii) the Mt. Xxxx Merger Consideration due to each Mt. Xxxx stockholder pursuant to Section 1.6. At the Closing, Parent shall deposit with Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP, the Parent’s exchange agent (the “Exchange Agent”) the aggregate Mt. Xxxx Merger Consideration.
(2) Within three (3) Business Days following after the Effective Time, Parent shall cause the Paying Exchange Agent to mail to each holder of record of Company Common Stock Mt. Xxxx stockholder (excluding those Mt. Xxxx stockholders holding only Dissenting Shares) (i) a form of letter of transmittal (the "Letter of Transmittal") (which shall specify that delivery shall be effected, and risk of loss and title to the certificates Certificates shall pass, only upon delivery of the certificates Certificates to the Paying Agent and Exchange Agent), which shall be in customary form with such form and have such other provisions (including customary provisions with respect to delivery of an "agent's message" with respect to shares held in book-entry form) as Parent may specifyshall reasonably specify (the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Mt. Xxxx Merger Consideration.
(3) At any time after the Effective Time, subject upon surrender to the Company's reasonable approvalExchange Agent of any Certificate (other than Certificates representing Dissenting Shares), together with instructions thereto. Upon (i) in the case of shares of Company Common Stock represented by a certificate, the surrender of such certificate for cancellation to the Paying Agent, or (ii) in the case of shares of Company Common Stock held in book-entry form, the receipt of an "agent's message" by the Paying Agent, in each case together with the duly executed Letter of Transmittal, duly, completely and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of each such shares Certificate shall be entitled to receive (and from the Paying Exchange Agent shall deliver) a bank check for an amount equal to immediately thereafter in exchange therefor the Merger Consideration multiplied by the number of shares of Company Common Stock to be converted in the Merger.
(c) In no event shall the holder of any surrendered certificates (or evidence of shares in book entry form) be entitled to receive interest on any portion of the Mt. Xxxx Merger Consideration to which such holder is entitled pursuant to Section 1.6, without interest. Each Certificate surrendered shall be received in the Merger.
(d) canceled. If any check for the Merger Consideration payment or delivery is to be issued in the name of made to a Person person other than the Person person in whose name the certificates (or electronic equivalents) a Certificate so surrendered for exchange therefor are is registered, it shall be a condition of the exchange payment that the certificate Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, that the signatures on the Certificate or any related stock power shall be properly guaranteed and that the Person person requesting such exchange shall payment either pay to the Paying Agent any transfer or other taxes Taxes required by reason of issuance of such check the payment to a Person person other than the registered holder of the certificates (Certificate so surrendered or electronic equivalents) surrendered, or shall establish to the satisfaction of the Paying Agent Parent that such tax Tax has been paid or is not applicable. Until surrendered in accordance with the provisions of this Section 1.12, each Certificate (other than Certificates canceled pursuant to this Agreement and Certificates representing Dissenting Shares) shall represent for all purposes only the right to receive the Mt. Xxxx Merger Consideration if, as and when payable pursuant to the terms set forth in this Agreement, without interest.
(e4) If for In the event that any reason Certificate (including lossesother than any Certificate representing Dissenting Shares) the Paying Agent shall not have sufficient funds to pay the amounts to which holders of Company Common Stock are entitled under this Article IV, Parent and the Surviving Corporation shall take all steps necessary to promptly deposit with the Paying Agent additional cash sufficient to make all payments required under this Article IV. Any funds deposited with the Paying Agent (including any interest received with respect thereto) that remain undistributed to the holders of Company Common Stock for twelve (12) months after the Effective Time shall be delivered to Parent, upon demand, and any holder of Company Common Stock who has not theretofore complied with this Article IV shall thereafter look only to Parent and Surviving Corporation for payment of its claim for Merger Consideration, without any interest thereon.
(f) If any certificate shall have been lost, stolen or destroyed, then, upon the making of an affidavit of that fact by the Person claiming registered holder of such certificate to be lost, stolen or destroyed and, if required by the Paying AgentCertificate in form and substance acceptable to Parent, the posting by such Person of a bond, in such amount as Parent or the Paying Exchange Agent may reasonably direct, as indemnity against any claim that may be made against it with respect to such certificate, Parent shall direct the Paying Agent to issue, will issue in exchange for such lost, stolen or destroyed certificate, Certificate the portion of the Mt. Xxxx Merger Consideration to be paid in respect of the shares of Company Common Stock represented by which such certificateholder is entitled pursuant to Section 1.6, as contemplated by this Article IVwithout interest.
(g5) Any portion of the Mt. Xxxx Merger Consideration paid to the Exchange Agent that remains unclaimed by the former holders of shares of Mt. Xxxx Common Stock one year after the Effective Time shall be delivered to Parent. Any such holder who has not theretofore exchanged his Certificates for the Mt. Xxxx Merger Consideration in accordance with this Article I shall thereafter look only to Parent for payment of the applicable Mt. Xxxx Merger Consideration payable in respect thereof, determined pursuant to this Agreement, without interest. None of the Company, Parent, Merger Sub, Mt. Xxxx or the Mt. Xxxx Surviving Corporation or the Paying Agent shall be liable to any Person in respect former holder of shares of Mt. Xxxx Common Stock for any cash from the Exchange Fund properly delivered amount paid to a public official governmental authority pursuant to any applicable abandoned property, escheat or similar Lawlaws. Any amounts remaining unclaimed by holders of Certificates one year after the Effective Time (or such earlier date immediately prior to such time as such amounts 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 any claims or interest of any person previously entitled thereto.
(h6) Except for the right to surrender of the certificate(s) (or evidence of shares in book entry form) representing the Company Common Stock in exchange for the right to receive the Merger Consideration with respect to each share of Company Common Stock, all shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and shall cease to exist at After the Effective Time and each holder of Company Common Stock Time, there shall cease to have any rights as a stockholder of the Company, and be no transfer of Company Common Stock shall thereafter be made transfers on the stock transfer books of the Mt. Xxxx Surviving Corporation of the shares of Mt. Xxxx Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates (other than Certificates representing Dissenting Shares) are presented to the Mt. Xxxx Surviving Corporation, they shall be canceled and exchanged for the Mt. Xxxx Merger Consideration, as applicable, as provided for, and in accordance with, the provisions of this Section 1.12.
(7) Each share of Mt. Xxxx Common Stock issued and outstanding immediately prior to the Effective Time held by stockholders who shall have properly exercised their appraisal rights with respect thereto under Section 262 of the DGCL (such shares, collectively, the “Dissenting Shares”) shall not be converted into the right to receive the Mt. Xxxx Merger Consideration pursuant to the Merger, but shall be entitled to receive payment of the appraised value of such shares in accordance with the provisions of Section 262 of the DGCL, except that each Dissenting Share held by a stockholder who shall thereafter withdraw his or her demand for appraisal or shall fail to perfect his or her right to such payment as provided in such Section 262 shall be deemed to be converted, as of the Effective Time, into the right to receive the Mt. Xxxx Merger Consideration in the form such holder otherwise would have been entitled to receive as a result of the Merger.
(8) Mt. Xxxx shall give Parent (i) prompt notice of any written demands for appraisal of any Mt. Xxxx Common Stock, withdrawals of such demands, and any other instruments that relate to such demands received by Mt. Xxxx and (ii) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal under the DGCL. Mt. Xxxx shall not, except with the prior written consent of Parent, make any payment with respect to any demands for appraisal of shares of Mt. Xxxx Common Stock or offer to settle or settle any such demands.
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