Exchange Payment. (a) Prior to the Closing Date, Parent shall select a reputable entity reasonably acceptable to the Company to act as exchange agent in the Merger (the “Exchange Agent”). No later than the Closing Date, Parent shall deposit with the Exchange Agent non-certificated shares of Parent Common Stock represented by Book-Entry Shares issuable in exchange for outstanding Company Common Stock pursuant to Section 1.5 (Conversion of Shares). The Parent Common Stock so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the “Exchange Fund”. (b) Promptly after the First Effective Time, the Exchange Agent shall mail to the holders of Company Capital Stock immediately prior to the First Effective Time: (i) a letter of transmittal in a form to be mutually agreed to by the Parties (the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book-Entry Shares in exchange for the Parent Common Stock in accordance with Section 1.5 (Conversion of Shares). Upon surrender of a Company Stock Certificate or Book-Entry Shares and delivery of a completed and duly executed Letter of Transmittal to the Exchange Agent for payment, (A) the holder of such Company Stock Certificate or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each share evidenced by such Company Stock Certificate or Book-Entry Shares determined pursuant to Section 1.5 (Conversion of Shares), within 10 Business Days of such surrender and delivery, and (B) the Company Stock Certificate or Book-Entry Shares so surrendered shall be canceled. No holder of any Company Capital Stock shall be entitled to receive any of the consideration in accordance with the preceding sentence without returning the completed and duly executed Letter of Transmittal. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, as a condition to the payment of the consideration hereunder, require the owner of such Company Stock Certificate to provide a reasonably appropriate affidavit to Parent (which may include an indemnity or bond in customary form). (c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Exchange Agent, DTC, DTC’s nominees and such other necessary or desirable third-party intermediaries to ensure that the Exchange Agent will transmit to DTC or its nominees as promptly as practicable after the First Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Exchange Agent, DTC, DTC’s nominees, and such other necessary or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger. (d) Upon surrender to the Exchange Agent of the Shares that (i) are represented by Company Stock Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed Letters of Transmittal and other appropriate transmittal materials required by the Exchange Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Exchange Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Exchange Agent may reasonably request pursuant to the terms and conditions of the Exchange Agent Agreement), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Exchange Agent, DTC, DTC’s nominees, and such other necessary and desirable third-party intermediaries pursuant to this Section 1.9, the holder of such Company Stock Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Exchange Agent to pay and deliver, out of the Exchange Fund, as promptly as practicable to such holders, the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Company Stock Certificates or Book-Entry Shares formerly evidencing the Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate or Book-Entry Shares so surrendered shall be endorsed properly or otherwise be in proper form for transfer , as the case may be, and that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Shares so surrendered, or shall have established to the reasonable satisfaction of the Surviving Entity that such Taxes either have been paid or are not applicable. Until surrendered as contemplated by this Section 1.9(d), each Certificate or Book-Entry Share shall be deemed at any time after the First Effective Time to represent only the right to receive upon such surrender the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). The Merger Consideration paid in respect of Shares upon their surrender or transfer for exchange in accordance with this Section 1.9(d) shall be deemed to have been paid in full satisfaction of all rights pertaining to such Shares. At any time following twelve (12) months after the First Effective Time, holders of Company Stock Certificates or Book-Entry Shares shall be entitled to look to the Surviving Entity (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Company Stock Certificates or Book-Entry Shares held by them. (e) As of the First Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the First Effective Time, the holders of the Shares outstanding immediately prior to the First Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. (f) Each of the Surviving Entity, Parent and Merger Subs shall be entitled to deduct and withhold (or cause the Exchange Agent to deduct and withhold) from any consideration payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirements to deduct and withhold. Each such payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body in accordance with applicable Tax Legal Requirements, such amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. (g) If any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if required by the Surviving Entity, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate (which shall not exceed the Merger Consideration payable with respect to such Company Stock Certificate), the Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to this Section 1.9), in exchange for such lost, stolen or destroyed Company Stock Certificate, the applicable Merger Consideration to be paid in respect of the Shares formerly represented by such Company Stock Certificate, as contemplated by this Section 1.9. (h) None of Parent, the Surviving Entity, the Exchange Agent or any other Party shall be liable to any holder of Shares for the Merger Consideration or any holder of Company equity awards for any amounts payable pursuant to Section 1.6 (Treatment of Company Warrants and Company Options) delivered in respect of such Share or Company equity awards, respectively, to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Entity or its designee, free and clear of all claims or interest of any Person previously entitled thereto. (i) Each of Parent, the Company, the Exchange Agent, and their respective agents (each a “Withholding Agent”) will be entitled to deduct and withhold from any amount payable to any Person under this Agreement or any other documents associated with the transaction, the amounts such Withholding Agent is required to deduct and withhold under the Code or any other applicable Law. To the extent that amounts are so withheld and paid over to the applicable Governmental Body, such withheld amounts will be treated as having been paid to the applicable Person in respect of whom such amounts were withheld.
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Samples: Merger Agreement (Rafael Holdings, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Exchange Payment. (a) Prior to the Closing Date, Parent shall select a reputable entity reasonably bank or trust company acceptable to the Company to act as exchange payment agent in the Merger (the “Exchange Payment Agent”). No later than At the Closing DateClosing, Parent shall deposit with the Exchange Payment Agent non-certificated shares cash in the amount of Parent Common Stock represented by Book-Entry Shares issuable in exchange for outstanding Company Common Stock pursuant to Section 1.5 (Conversion of Shares)the Payment Amount. The Parent Common Stock so deposited with No later than the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the “Exchange Fund”.
(b) Promptly after the First Effective Time, the Exchange Payment Agent shall mail to the holders of Company Capital Stock and the holder of the Non-Employee Optionholders, in each case as of immediately prior to the First Effective Time: (i) a letter of transmittal in a substantially the form to be mutually agreed to by the Parties attached hereto as Exhibit D (the “Letter Letters of Transmittal”) and ), (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book-Entry Shares in exchange for the Parent Common Stock cash amounts payable in accordance with Section 1.5 and (Conversion iii) instructions for use in effecting the surrender of Shares)Company Options held by Non-Employee Optionholders in exchange for the Options Payout Amount, if any, which instructions shall include, without limitation, the requirement that each Non-Employee Optionholder sign the Option Termination Letter as a condition to receipt of the Options Payout Amount, if any. Upon Subject to the terms of any Holdback Agreement, upon surrender of a Company Stock Certificate or Book-Entry Shares to the Payment Agent for payment, together with a duly executed Letter of Transmittal, and delivery in no event later than five (5) business days after receipt of a completed such Company Stock Certificate and duly executed Letter of Transmittal to after the Exchange Agent for paymentClosing Date, (A) the holder of such Company Stock Certificate or Book-Entry Shares shall be entitled to receive in exchange therefor the Per Share Merger Consideration for each share evidenced by such Company Stock Certificate or Book-Entry Shares determined pursuant less the amount to be withheld in escrow in accordance with Section 1.5 (Conversion 1.10 of Shares), within 10 Business Days of such surrender and delivery, this Agreement and (B) the Company Stock Certificate or Book-Entry Shares so surrendered shall be canceled. No holder of any Company Capital Stock shall be entitled to receive any of the consideration in accordance with the preceding sentence without returning the completed and duly executed Letter of Transmittal. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, as a condition to the payment of the consideration hereunderPer Share Merger Consideration with respect to each share of Company Capital Stock evidenced by such Company Stock Certificate, require the owner of such Company Stock Certificate to provide a reasonably appropriate an executed affidavit to Parent (in a form reasonably acceptable to Parent, which may affidavit shall include an indemnity or bond in customary form).
(c) With respect agreement to Book-Entry Shares held, directly or indirectly, through DTC, indemnify and hold harmless Parent and the Company shall cooperate to establish procedures with the Exchange Agent, DTC, DTC’s nominees Payment Agent from and such other necessary or desirable third-party intermediaries to ensure that the Exchange Agent will transmit to DTC or its nominees as promptly as practicable after the First Effective Time, upon against any losses arising therefrom. Upon surrender of Shares customary documentation relating to a Company Option held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Exchange Agent, DTC, DTC’s nominees, and such other necessary or desirable thirda Non-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger.
(d) Upon surrender Employee Optionholder to the Exchange Payment Agent of the Shares that (i) are represented by Company Stock Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) for payment together with duly completed and properly executed Letters of Transmittal and other appropriate transmittal materials required by the Exchange Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Exchange Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of such Book-Entry Shares IRS Forms W-8 and/or W-9 (or such other reasonable evidence, if any, of such surrender as the Exchange Agent may reasonably request pursuant to the terms and conditions of the Exchange Agent Agreementsubstitute forms thereof), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Exchange Agent, DTC, DTC’s nominees, and such other necessary and desirable third-party intermediaries pursuant to this Section 1.9applicable, the holder of such Company Stock Certificates or Book-Entry Shares Option, as applicable, shall be entitled to receive in exchange therefortherefor the applicable Options Payout Amount, as applicable, less the amount to be withheld in escrow in accordance with Section 1.9 of this Agreement.
(b) Promptly following the Effective Time (and in any event no later than the Company’s next regularly scheduled payroll date following the Closing) and subject to Sections 1.9(e), 1.10 and 1.11, as applicable, upon the surrender of customary documentation relating to a Company Option held by each Employee Optionholder (including, without limitation, the requirement that each Employee Optionholder sign the Option Termination Letter), Parent shall cause the Exchange Agent Surviving Corporation to pay and deliverto each Employee Optionholder an amount equal to the applicable Options Payout Amount, out of the Exchange Fundif any, as promptly as practicable with respect to such holdersCompany Option, less the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). If the payment of any Merger Consideration is amount to be made to a Person other than the Person withheld in whose name the surrendered Company Stock Certificates or Book-Entry Shares formerly evidencing the Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate or Book-Entry Shares so surrendered shall be endorsed properly or otherwise be in proper form for transfer , as the case may be, and that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Shares so surrendered, or shall have established to the reasonable satisfaction of the Surviving Entity that such Taxes either have been paid or are not applicable. Until surrendered as contemplated by this Section 1.9(d), each Certificate or Book-Entry Share shall be deemed at any time after the First Effective Time to represent only the right to receive upon such surrender the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). The Merger Consideration paid in respect of Shares upon their surrender or transfer for exchange escrow in accordance with Section 1.10 of this Section 1.9(d) Agreement. The payments described in the preceding sentence shall be deemed effected through the Surviving Corporation’s customary payroll processes.
(c) Any portion of the amounts payable in accordance with Section 1.5 that remains undistributed to have been paid in full satisfaction of all rights pertaining to such Shares. At any time following twelve (12) months after the First Effective Time, holders of Company Stock Certificates or Book-Entry Shares Company Options as of the first anniversary of the Effective Time shall be entitled delivered to look to the Surviving Entity (subject to abandoned propertyParent upon demand, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender any holders of the Company Stock Certificates or Book-Entry Shares held by themCompany Options who have not theretofore surrendered the documentation contemplated under this Section 1.9 shall thereafter look only to Parent for satisfaction of their claims for the cash amounts payable in accordance with Sections 1.5 and 1.6, without interest thereon.
(ed) As of the First Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the First Effective Time, the holders of the Shares outstanding immediately prior to the First Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements.
(f) Each of Neither Parent nor the Surviving Entity, Parent and Merger Subs shall be entitled to deduct and withhold (or cause the Exchange Agent to deduct and withhold) from any consideration payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirements to deduct and withhold. Each such payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body in accordance with applicable Tax Legal Requirements, such amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(g) If any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if required by the Surviving Entity, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate (which shall not exceed the Merger Consideration payable with respect to such Company Stock Certificate), the Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to this Section 1.9), in exchange for such lost, stolen or destroyed Company Stock Certificate, the applicable Merger Consideration to be paid in respect of the Shares formerly represented by such Company Stock Certificate, as contemplated by this Section 1.9.
(h) None of Parent, the Surviving Entity, the Exchange Agent or any other Party Corporation shall be liable to any holder of Shares for the Merger Consideration or any former holder of Company equity awards for Capital Stock or Company Options with respect to any amounts payable pursuant properly delivered to Section 1.6 (Treatment of Company Warrants and Company Options) delivered in respect of such Share or Company equity awards, respectively, to a any public official pursuant to any applicable abandoned property, property law or escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Entity or its designee, free and clear of all claims or interest of any Person previously entitled theretolaw.
(ie) Each of Parent, the CompanyMerger Sub, the Exchange AgentSurviving Corporation, the Payment Agent and their respective agents (each a “Withholding Agent”) the Escrow Agent will be entitled to deduct and withhold from any amount the consideration otherwise payable to any Person under this Agreement to any holder of Company Capital Stock or any other documents associated with Company Options the transactionamounts Parent, Merger Sub, the amounts such Withholding Surviving Corporation, the Payment Agent or the Escrow Agent is required to deduct and withhold under the Code or any other applicable Tax Law; provided, however, in the event Parent, Merger Sub, the Surviving Corporation, the Payment Agent or the Escrow Agent determines it is required to so deduct and withhold, prior to any such deduction and withholding it shall consult with the Stockholders’ Representative in good faith regarding such requirement and whether such requirement may be avoided or otherwise mitigated. To the extent that amounts are so withheld and properly paid over to the applicable Tax Governmental Body, such any withheld amounts will be treated as having been paid to the applicable Person in respect holder of whom such amounts were withheldCompany Capital Stock or Company Options.
Appears in 1 contract
Exchange Payment. (a) Prior to the Closing Date, Parent shall select a engage PNC Bank, National Association or another reputable entity bank or trust company reasonably acceptable to the Company to act as exchange payment agent in the Merger I (the “Exchange Payment Agent”) and enter into a payment agent agreement in form and substance reasonably acceptable to the Company (the “Payment Agent Agreement”). No later than Parent shall pay the Payment Agent all fees and expenses of the Payment Agent and shall deposit, or shall cause to be deposited on or prior to the Closing, with the Payment Agent cash in the amount of the Closing Date, Parent shall deposit with Cash Consideration Amount (to the Exchange Agent non-certificated shares of Parent Common Stock represented by Book-Entry Shares issuable in exchange for outstanding Company Common Stock pursuant to Section 1.5 (Conversion of Shares). The Parent Common Stock so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the “Exchange Fund”.
(b) Promptly after the First Effective Time, the Exchange Agent shall mail extent payable to the holders of Company Capital Stock and Non-Employee Options, which, for the avoidance of doubt, excludes the Aggregate Exercise Amount) and shall make available through Parent’s transfer agent Book-Entry shares of Parent Common Stock in the amount of the Upfront Stock Consideration or other stock consideration that may become due hereunder. As soon as practicable after the date hereof and prior to the Closing (the delivery of the Information Statement by the Company, including the information included therein pursuant to Section 5.1 to be provided by Parent, shall not be unreasonably delayed) the Payment Agent shall deliver (including via email, if available) to the holders of Company Capital Stock and Company Options, in each case as of immediately prior to the First Merger I Effective Time: (i) the Information Statement, Joinder Agreement, and Accredited Investor Questionnaire (ii) a letter of transmittal in a substantially the form to be mutually agreed to by the Parties attached hereto as Exhibit D (the “Letter of Transmittal”), (iii) the requisite documents to execute and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Certificates, Book-Entry Shares Entries or Company Options, as applicable, in exchange for the Parent Common Stock consideration payable thereof (as set forth in accordance with Section 1.5 (Conversion of Shares) and/or Section 1.6 (Treatment of Company Options)). Upon surrender of a Company Stock Certificate or Certificate, Book-Entry Shares and delivery of or Company Option to the Payment Agent for payment, together with a completed and duly executed Letter of Transmittal to the Exchange Agent for paymentTransmittal, (A) the holder of such Company Stock Certificate or Certificate, Book-Entry Shares or Company Option, as applicable, shall be entitled to promptly receive in exchange therefor (1) the Merger applicable portion of the Closing Cash Consideration Amount and Upfront Stock Consideration for each share evidenced by such Company Stock Certificate or Certificate, Book-Entry Shares or Company Option, (2) if and when due and payable, the Per Share Future Payment Amount in respect of a Future Payment for each share evidenced by such Company Stock Certificate, Book-Entry or Company Option, and (3) if and when due and payable, the Per Share Milestone Consideration in respect of a Milestone for each share evidenced by such Company Stock Certificate, Book-Entry or Company Option, in each case as determined pursuant to Section 1.5 (Conversion of Shares) or Section 1.6 (Treatment of Company Options), within 10 Business Days as applicable, in each case in cash and/or by issuing Book-Entry shares of such surrender and delivery, Parent Common Stock (as applicable) and (B) the Company Stock Certificate or Certificate, Book-Entry Shares or Company Option so surrendered shall be canceled. No holder of any Company Capital Stock shall be entitled to receive any of the consideration in accordance with the preceding sentence without returning the completed and duly executed Letter of Transmittalcancelled. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent or the Payment Agent, as applicable, may, as a condition to the payment of the consideration hereunderhereunder with respect to each share of Company Capital Stock evidenced by such Company Stock Certificate, require the owner of such Company Stock Certificate to provide a reasonably appropriate affidavit to Parent (which may include an indemnity or bond in customary form).
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Exchange Payment Agent, DTC, DTC’s nominees and such other necessary or desirable third-party intermediaries to ensure that the Exchange Agent will transmit to DTC or its nominees as promptly as practicable after the First Effective Time, applicable (a “Lost Certificate Affidavit”). All consideration paid upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Exchange Agent, DTC, DTC’s nominees, and such other necessary or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger.
(d) Upon surrender to the Exchange Agent of the Shares that (i) are represented by Company Stock Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed Letters of Transmittal and other appropriate transmittal materials required by the Exchange Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Exchange Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Exchange Agent may reasonably request pursuant to the terms and conditions of the Exchange Agent Agreement), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Exchange Agent, DTC, DTC’s nominees, and such other necessary and desirable third-party intermediaries pursuant to this Section 1.9, the holder of such Company Stock Certificates or Book-Entry Shares shall be entitled to receive Entries (or Lost Certificate Affidavits in exchange therefor, and Parent shall cause the Exchange Agent to pay and deliver, out of the Exchange Fund, lieu thereof as promptly as practicable to such holders, the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). If the payment of any Merger Consideration is to be made to a Person other than the Person set forth in whose name the surrendered Company Stock Certificates or Book-Entry Shares formerly evidencing the Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate or Book-Entry Shares so surrendered shall be endorsed properly or otherwise be in proper form for transfer , as the case may be, and that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Shares so surrendered, or shall have established to the reasonable satisfaction of the Surviving Entity that such Taxes either have been paid or are not applicable. Until surrendered as contemplated by this Section 1.9(d1.16(a) (Exchange/Payment), each Certificate or Book-Entry Share shall be deemed at any time after the First Effective Time to represent only the right to receive upon such surrender the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). The Merger Consideration paid in respect of Shares upon their surrender or transfer for exchange ) in accordance with this Section 1.9(d) the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to such Sharesthe shares of Company Capital Stock represented thereby. At No interest will be paid or accrued on any time following twelve amount payable for shares of Company Capital Stock pursuant to this Section 1 (12) months after Description of Transaction). Notwithstanding the First Effective Timeforegoing, the Payment Agent will not make any payment to the holders of Company Stock Certificates or Book-Entry Shares shall be entitled to look to the Surviving Entity Employee Options and (i) subject to abandoned propertySection 1.16(d) (Exchange Payment), escheat and other similar Legal Requirements) only as general creditors thereof with respect to within one full payroll period following the Merger Consideration that may be payable upon due surrender of the Company Stock Certificates or Book-Entry Shares held by them.
(e) As of the First II Effective Time, the stock transfer books Merger II Surviving Company shall pay through the Company’s payroll system the portion of the Company with Closing Cash Consideration, if any, due to each Employee Option Holder in respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the First Effective Time, the holders of the Shares outstanding immediately prior to the First Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements.
(f) Each of the Surviving Entity, Parent and Merger Subs shall be entitled to deduct and withhold (or cause the Exchange Agent to deduct and withhold) from any consideration payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirements to deduct and withhold. Each such payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body individual’s Employee Options in accordance with applicable Tax Legal Requirements, such amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(g) If any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if required by the Surviving Entity, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate (which shall not exceed the Merger Consideration payable with respect to such Company Stock Certificate), the Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to this Section 1.9), in exchange for such lost, stolen or destroyed Company Stock Certificate, the applicable Merger Consideration to be paid in respect of the Shares formerly represented by such Company Stock Certificate, as contemplated by this Section 1.9.
(h) None of Parent, the Surviving Entity, the Exchange Agent or any other Party shall be liable to any holder of Shares for the Merger Consideration or any holder of Company equity awards for any amounts payable pursuant to Section 1.6 (Treatment of Company Warrants Options), (ii) Parent shall make available through Parent’s transfer agent Book-Entry shares of Parent Common Stock in the amount of the Upfront Stock Consideration (if and to the extent payable to the Employee Option Holders in accordance with Section 1.6 (Treatment of Company Options)) delivered and (iii) to the extent any additional cash payment becomes due pursuant to Section 1.6(a)(i) (Treatment of Company Options), within one full payroll period following the final determination of such additional payment amount in accordance with Section 1.17 (Post-Closing Adjustment), 1.18 (Milestone Consideration), 1.21(d) (Securityholders’ Representative) or 1.22(d) (Escrow Agreement), as applicable, the Merger II Surviving Company shall pay through the Company’s payroll system the cash portion of such Future Payment or such Milestone Consideration, if any, and make available through Parent’s transfer agent Book-Entry shares of Parent Common Stock in the amount of the Parent Common Stock portion of such Future Payment or such Milestone Consideration, if any, due to each Employee Option Holder in respect of such Share or individual’s Employee Options in accordance with Section 1.6 (Treatment of Company equity awardsOptions).
(b) Any portion of the consideration payable in accordance with Sections 1.5 (Conversion of Shares), respectively1.6 (Treatment of Company Options), 1.17 (Post-Closing Adjustment), 1.18 (Milestone Consideration), 1.21(d) (Securityholders’ Representative) and 1.22(d) (Escrow Agreement) that remains undistributed by the Payment Agent to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which Securityholder as of 180 days after the date of deposit of such amounts would otherwise escheat with the Payment Agent shall be delivered to or become property Parent upon demand, and unclaimed amounts of any Governmental Body shall becomesuch payments shall, to the extent permitted by applicable Legal RequirementsLaw, become the property of the Merger I Surviving Entity or its designeeCorporation and, after the Merger II Effective Time, the Merger II Surviving Company (and their successors), free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, any Securityholder who has not theretofore surrendered the documentation contemplated under this Section 1.16 (Exchange/Payment) shall thereafter look only to the Merger II Surviving Company or Parent and only as general creditors thereof for satisfaction of their claims for the cash amounts or Parent Common Stock payable in accordance with Sections 1.5 (Conversion of Shares), 1.6 (Treatment of Company Options), 1.17 (Post-Closing Adjustment), 1.18 (Milestone Consideration), 1.21(d) (Securityholders’ Representative) and 1.23(d) (Escrow Agreement), as applicable.
(ic) None of Parent, the Merger I Surviving Corporation or the Merger II Surviving Company shall be liable to any holder or former holder of Company Capital Stock or Company Options with respect to any amounts properly delivered to any public official pursuant to any applicable abandoned property Law or escheat Law.
(d) Each of Parent, the Company, the Exchange AgentMerger I Surviving Corporation, the Merger II Surviving Company, the Escrow Agent and their respective agents the Payment Agent (each each, a “Withholding Agent”) will be entitled to deduct and withhold from any amount the consideration otherwise payable under this Agreement to any Person under this Agreement or any other documents associated with the transaction, the amounts such Withholding Agent is required to deduct and withhold under the Code or any other applicable Tax Law. To the extent that amounts are so withheld and properly paid over to the applicable Governmental BodyBody in accordance with applicable Law, such withheld and paid over amounts will be treated as having been paid to the applicable such Person in respect of whom which such amounts were withhelddeduction and withholding was made. At Parent’s election, if any payment of consideration comprises of cash and Parent Common Stock, Parent shall be entitled to make such deduction and withholding in whole or part from the cash component of such consideration.
(e) Subject to Sections 1.16(a) and 1.16(c), after Parent delivers any payment to the Payment Agent pursuant to Sections 1.5 (Conversion of Shares), 1.6 (Treatment of Company Options), 1.17 (Post-Closing Adjustment), 1.18 (Milestone Consideration), 1.21(d) (Securityholders’ Representative) and 1.22(d) (Escrow Agreement) in accordance with the Closing Payment Schedule or any updated Closing Payment Schedule, each Securityholder will be entitled to look only to the Payment Agent (or, solely if applicable under Section 1.16(a), the Merger II Surviving Company or Parent) for any cash payments due and payable to such Securityholder pursuant to Sections 1.5 (Conversion of Shares), 1.6 (Treatment of Company Options), 1.17 (Post-Closing Adjustment), 1.18 (Milestone Consideration), 1.21(d) (Securityholders’ Representative) and 1.22(d) (Escrow Agreement) following the delivery of such Securityholder’s duly executed and completed Letter of Transmittal and Company Stock Certificate, as applicable, pursuant to this Agreement.
(f) If Parent determines in good faith that there is a material error on the face of any updated Closing Payment Schedule, other than any matter that is the subject to resolution pursuant to Section 1.17 (Post-Closing Adjustment) which Parent will not be entitled to further dispute pursuant to this Section 1.16(f), Parent and the Securityholders’ Representative shall for a period of five Business Days following Parent’s delivery to the Securityholders’ Representative of notice (such notice shall be delivered no later than the applicable payment date) of such dispute engage in good faith negotiations to resolve such dispute and Parent shall not be required to make the applicable payments corresponding to such updated Closing Payment Schedule until the earlier of the final resolution of such dispute and five Business Days following the applicable payment date.
(g) No fractional shares of Parent Common Stock shall be issued and no certificates for any such fractional shares shall be issued to the Participating Securityholders in connection with the transactions contemplated hereby. Any fraction of a share of Parent Common Stock issuable to a Participating Securityholder pursuant to this Agreement shall, after aggregating all such issuable shares, be rounded down to the nearest whole share.
(h) In the event the total number of shares of Parent Common Stock to be issued hereunder exceeds 19.9% of the total Parent Common Stock outstanding (not including any shares of Parent Common Stock that are owned by Parent and without assuming the conversion or exercise of any options, warrants or other convertible securities) (the “Nasdaq Threshold”) and a stockholder approval of the issuance of such number of Parent Common Stock would be required pursuant to Nasdaq Rule 5635, then Parent shall pay all payments of Parent Common Stock issuable under this Agreement in cash in immediately available funds to the extent such number of shares of Parent Common Stock exceeds the Nasdaq Threshold.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Bionano Genomics, Inc)
Exchange Payment. (a) Prior to the Closing Date, Parent shall select a reputable entity reasonably acceptable to the Company to act as exchange agent in the Merger (the “Exchange Agent”). No and no later than the Closing Date, Parent shall deposit with the Exchange Payment Agent non-certificated shares cash in the amount of Parent Common Stock represented by Book-Entry Shares issuable the Closing Payment Amount in exchange for outstanding Company Common Stock pursuant to accordance with Section 1.5 (Conversion of Shares1.7(a)(ii). The In no event later than one Business Day after the Effective Time, Parent Common Stock so deposited with shall cause the Exchange AgentPayment Agent to provide (electronically, together with any dividends or distributions received by the Exchange Agent with respect to such sharesany Company Stockholder for whom an email address is listed on the Estimated Closing Statement and who holds electronic, are referred and not physical, Company Stock Certificates, and by physical mail, to collectively as the “Exchange Fund”.
(b) Promptly after the First Effective Timeany Company Stockholder for whom an email address is not provided or who holds physical Company Stock Certificates), the Exchange Agent shall mail with respect to the holders Company Stockholders as of Company Capital Stock immediately prior to the First Effective Time: , (i) a letter of transmittal in substantially the form attached hereto as Exhibit C (each, a form to be mutually agreed to by the Parties (the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book-Entry Shares Certificates, if applicable, in exchange for the Parent Common Stock portion, if any, of the Merger Consideration payable in accordance with Section 1.5 and Section 1.6 (Conversion of Sharesbut subject to Sections 1.11, 1.12, 1.13, 1.15, and 1.16). Upon surrender submission to the Payment Agent of a Company Stock Certificate or Book-Entry Shares and delivery of a completed and duly executed Letter of Transmittal Transmittal, and with respect to any physical Company Stock Certificates the Exchange Agent for paymentCompany Stock Certificate, (A) the holder of such Company Stock Certificate or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration cash amounts payable in accordance with Sections 1.5 and/or 1.6, as the case may be (subject in each case to Sections 1.11, 1.12, 1.13, 1.15, and 1.16) for each share evidenced by such Company Stock Certificate or Book-Entry Shares determined pursuant to Section 1.5 (Conversion of Shares), within 10 Business Days of such surrender and delivery, and (B) the Company Stock Certificate or Book-Entry Shares so surrendered shall be canceled. No holder of any Company Capital Stock shall be entitled to receive any of the consideration in accordance with the preceding sentence without returning the completed and correctly listed on such duly executed Letter of Transmittal. If No Company Stockholder who holds electronic and not physical Company Stock Certificates shall be required to surrender any Company Stock Certificate Certificates in exchange for such Company Stockholder’s applicable portion of the Merger Consideration but such Company Stockholder shall have been lost, stolen or destroyedbe required to deliver a duly completed and validly executed Letter of Transmittal to the Payment Agent in order to receive its portion of the Merger Consideration.
(b) (i) Within one Business Day following the Effective Time, Parent mayshall cause the Payment Agent to provide, with respect to each holder of Non-Employee Options as a condition of immediately prior to the payment of Effective Time, an option termination agreement in the consideration hereunder, require the owner of such Company Stock Certificate to provide a reasonably appropriate affidavit form acceptable to Parent (which may include each, an indemnity or bond in customary form).
(c“Option Termination Agreement”) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Exchange Agent, DTC, DTC’s nominees and such other necessary customary documents as may reasonably be required by the Payment Agent. Upon delivery to the Payment Agent of a duly completed and validly executed electronic or desirable third-party intermediaries to ensure that the Exchange Agent will transmit to DTC or its nominees as promptly as practicable after the First Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures physical Option Termination Agreement and such other procedures documents as agreed by Parent, the Company, the Exchange Agent, DTC, DTC’s nominees, and such other necessary or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger.
(d) Upon surrender to the Exchange Agent of the Shares that (i) are represented by Company Stock Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed Letters of Transmittal and other appropriate transmittal materials reasonably required by the Exchange Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Exchange Payment Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of therein, such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Exchange Agent may reasonably request pursuant to the terms and conditions of the Exchange Agent Agreement), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Exchange Agent, DTC, DTC’s nominees, and such other necessary and desirable third-party intermediaries pursuant to this Section 1.9, the holder of such Company Stock Certificates or BookNon-Entry Shares Employee Options shall be entitled to receive in exchange therefor, and the Parent shall cause the Exchange Payment Agent to pay and deliver, out of the Exchange Fund, as promptly as practicable to such holderspay, the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Company Stock Certificates or Book-Entry Shares formerly evidencing the Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate or Book-Entry Shares so surrendered shall be endorsed properly or otherwise be in proper form for transfer , as the case may be, and that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Shares so surrendered, or shall have established to the reasonable satisfaction of the Surviving Entity that such Taxes either have been paid or are not applicable. Until surrendered as contemplated by this Section 1.9(d), each Certificate or Book-Entry Share shall be deemed at any time after the First Effective Time to represent only the right to receive upon such surrender the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). The Merger Consideration paid in respect of Shares upon their surrender or transfer for exchange cash amounts payable in accordance with this Section 1.9(d) shall be deemed to have been paid in full satisfaction of all rights pertaining to such Shares. At any time following twelve (12) months after the First Effective Time, holders of Company Stock Certificates or Book-Entry Shares shall be entitled to look to the Surviving Entity (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Company Stock Certificates or Book-Entry Shares held by them.
(e) As of the First Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the First Effective Time, the holders of the Shares outstanding immediately prior to the First Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements.
(f) Each of the Surviving Entity, Parent and Merger Subs shall be entitled to deduct and withhold (or cause the Exchange Agent to deduct and withhold) from any consideration payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirements to deduct and withhold. Each such payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body in accordance with applicable Tax Legal Requirements, such amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(g) If any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if required by the Surviving Entity, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate (which shall not exceed the Merger Consideration payable with respect to such Company Stock Certificate), the Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to this Section 1.9), in exchange for such lost, stolen or destroyed Company Stock Certificate, the applicable Merger Consideration to be paid in respect of the Shares formerly represented by such Company Stock Certificate, as contemplated by this Section 1.9.
(h) None of Parent, the Surviving Entity, the Exchange Agent or any other Party shall be liable to any holder of Shares for the Merger Consideration or any holder of Company equity awards for any amounts payable pursuant to Section 1.6 (Treatment of Company Warrants and Company Options) delivered subject in respect of such Share or Company equity awardseach case to Sections 1.11, respectively1.12, to a public official pursuant to any abandoned property1.13, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Entity or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(i) Each of Parent, the Company, the Exchange Agent1.15, and their respective agents (each a “Withholding Agent”) will be entitled to deduct and withhold from any amount payable to any Person under this Agreement or any other documents associated with the transaction, the amounts such Withholding Agent is required to deduct and withhold under the Code or any other applicable Law. To the extent that amounts are so withheld and paid over to the applicable Governmental Body, such withheld amounts will be treated as having been paid to the applicable Person in respect of whom such amounts were withheld1.16).
Appears in 1 contract
Exchange Payment. (a) Prior to the Closing Date, Parent shall select a reputable entity reasonably bank or trust company acceptable to the Company to act as exchange agent in the Merger (the “"Exchange Agent”"). No later than At the Closing DateClosing, Parent shall deposit with the Exchange Agent non-certificated a number of shares of Parent Common Stock represented by Book-Entry Shares issuable equal to the Payment Amount and an amount of cash equal to the Cash Merger Consideration (less the amount of Cash Merger Consideration that is referred to in exchange for outstanding Company Common Stock pursuant to Section 1.5 clause (Conversion ii) of Sharesthe definition of Cash Merger Consideration). The Parent Common Stock so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively As promptly as the “Exchange Fund”.
practicable and in no event later than five (b5) Promptly Business Days after the First Effective Time, the Exchange Agent shall mail to the holders of Company Capital Stock Stock, Company Convertible Debt and Company Warrants, in each case as of immediately prior to the First Effective Time: (i) a letter of transmittal in a substantially the form to be mutually agreed to by the Parties attached hereto as Exhibit D (the “Letter "Letters of Transmittal”) "), and (ii) instructions for use in effecting the surrender of Certificates, Company Stock Certificates Warrants or Book-Entry Shares instrument representing the Convertible Debt, in exchange for the Parent Common Stock or cash payable in accordance with Section 1.5 (Conversion of Shares)1.5. Upon surrender of a Certificate, Company Stock Certificate Warrant or Book-Entry Shares and delivery evidence of a completed and duly executed Letter of Transmittal Company Convertible Debt, if applicable, to the Exchange Agent for payment, together with a duly executed Letter of Transmittal, (A) the holder of such Certificate, the holder of such Company Stock Certificate or Book-Entry Shares Warrant and the Company Convertible Debt Holder shall be entitled to receive in exchange therefor the Merger Consideration shares of Parent Common Stock or cash payable in accordance with Section 1.5 for each share evidenced by such Certificate, Company Stock Certificate Warrant or Book-Entry Shares determined pursuant Company Convertible Debt, as applicable, less the amount to be withheld in escrow in accordance with Section 1.5 (Conversion 1.9 of Shares), within 10 Business Days of such surrender and delivery, this Agreement and (B) the Certificate, Company Stock Certificate Warrant or Book-Entry Shares evidence of Company Convertible Debt, if applicable, so surrendered shall be canceled. No holder of any Company Capital Stock shall be entitled to receive any of the consideration in accordance with the preceding sentence without returning the completed and duly executed Letter of Transmittal. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, as a condition to the payment of the consideration hereundershares of Parent Common Stock or cash payable in accordance with Section 1.5 with respect to each share of Company Capital Stock evidenced by such Certificate, require the owner of such Company Stock Certificate to provide a reasonably appropriate an executed affidavit to Parent (in a form reasonably acceptable to Parent, which may affidavit shall include an indemnity or a bond in customary form)such sum as Parent may reasonably direct and an agreement to indemnify and hold harmless Parent and the Exchange Agent from and against any losses arising therefrom.
(cb) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Exchange Agent, DTC, DTC’s nominees and such other necessary or desirable third-party intermediaries to ensure that the Exchange Agent will transmit to DTC or its nominees as As promptly as practicable and in no event later than five (5) Business Days after the First Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Exchange Agent, DTC, DTC’s nominees, and such other necessary or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger.
(d) Upon surrender to the Exchange Agent of the Shares that (i) are represented by Company Stock Certificates, by physical surrender of such Certificates Time (or effective affidavits of loss if later, five (5) Business Days after the release referred to in lieu thereof) together with duly completed and executed Letters of Transmittal and other appropriate transmittal materials required by the Exchange Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Exchange Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Exchange Agent may reasonably request pursuant to the terms and conditions of the Exchange Agent AgreementManagement Incentive Plan becomes effective), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Exchange Agent, DTC, DTC’s nominees, and such other necessary and desirable third-party intermediaries pursuant to this Section 1.9, the holder of such Company Stock Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Exchange Agent to pay and deliver, out of the Exchange Fund, as promptly as practicable deliver to such holderseach MIP Holder, the number of whole shares of Parent Common Stock which equal to the aggregate number portion of Company Capital the Stock previously represented by Merger Consideration payable to such Certificates or Book-Entry Shares shall have been converted MIP Holder at the Closing and the amount in cash payable to such MIP Holder pursuant to the Management Incentive Plan and Section 1.5 (Conversion 1.5(e)(i) of Shares). If this Agreement, less the payment of any Merger Consideration is amount to be made to a Person other than the Person withheld in whose name the surrendered Company Stock Certificates or Book-Entry Shares formerly evidencing the Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate or Book-Entry Shares so surrendered shall be endorsed properly or otherwise be in proper form for transfer , as the case may be, and that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Shares so surrendered, or shall have established to the reasonable satisfaction of the Surviving Entity that such Taxes either have been paid or are not applicable. Until surrendered as contemplated by this Section 1.9(d), each Certificate or Book-Entry Share shall be deemed at any time after the First Effective Time to represent only the right to receive upon such surrender the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). The Merger Consideration paid in respect of Shares upon their surrender or transfer for exchange in accordance with this Section 1.9(d) shall be deemed to have been paid in full satisfaction of all rights pertaining to such Shares. At any time following twelve (12) months after the First Effective Time, holders of Company Stock Certificates or Book-Entry Shares shall be entitled to look to the Surviving Entity (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof escrow with respect to the Merger Consideration that may be payable upon due surrender MIP Management Holders.
(c) Promptly following the Effective Time and subject to Sections 1.8(f), 1.9 and 1.10, as applicable, Parent shall issue to each Person who immediately prior to the Effective Time was a holder of an outstanding Assumed Option, a document evidencing the foregoing assumption of such option by Parent.
(d) Any portion of the amounts payable in accordance with Section 1.5 that remains undistributed to holders of Certificates, Company Stock Warrants or Company Convertible Debt as of the first anniversary of the Effective Time shall be delivered to Parent upon demand, and any holders of Certificates or Book-Entry Shares held by themwho have not theretofore surrendered the documentation contemplated under this Section 1.8 shall thereafter look only to Parent for satisfaction of their claims for the consideration payable in accordance with Section 1.5, without interest thereon.
(e) As Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of the First Effective TimeCompany Capital Stock, the stock transfer books of the Company Warrants or Company Convertible Debt with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the First Effective Time, the holders of the Shares outstanding immediately prior any amounts properly delivered to the First Effective Time shall cease any public official pursuant to have any rights with respect to such Shares except as otherwise provided herein applicable abandoned property law or by applicable Legal Requirementsescheat law.
(f) Each of Parent, Merger Sub, the Surviving Entity, Parent and Merger Subs shall be entitled to deduct and withhold (or cause the Exchange Agent to deduct and withhold) from any consideration payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirements to deduct and withhold. Each such payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body in accordance with applicable Tax Legal Requirements, such amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(g) If any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if required by the Surviving Entity, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate (which shall not exceed the Merger Consideration payable with respect to such Company Stock Certificate)Corporation, the Exchange Agent will pay and the Escrow Agent (less any amounts entitled to be deducted or withheld pursuant to this Section 1.9), in exchange for such lost, stolen or destroyed Company Stock Certificate, the applicable Merger Consideration to be paid in respect of the Shares formerly represented by such Company Stock Certificate, as contemplated by this Section 1.9.
(h) None of Parent, the Surviving Entity, the Exchange Agent or any other Party shall be liable to any holder of Shares for the Merger Consideration or any holder of Company equity awards for any amounts payable pursuant to Section 1.6 (Treatment of Company Warrants and Company Options) delivered in respect of such Share or Company equity awards, respectively, to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Entity or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(i) Each of Parent, the Company, the Exchange Agent, and their respective agents (each a “"Withholding Agent”Agents") will be entitled to deduct and withhold from any amount the consideration otherwise payable to any Person under this Agreement to any holder of Company Capital Stock, Company Convertible Debt Holder, MIP Holder, holder of Company Warrants or any other documents associated with the transactionrecipient of any payment under this Agreement, the amounts such the Withholding Agent is required to deduct and withhold under the Code or any other applicable Tax Law. The Withholding Agent shall cooperate and consult with the Stockholders' Representative regarding the amount of any such withholding tax. To the extent that amounts are so withheld and properly paid over to the applicable Tax Governmental Body, such any withheld amounts will be treated as having been paid to the applicable Person in respect holder of whom such amounts were withheldCompany Capital Stock, Company Convertible Debt Holder, MIP Holder, holder of Company Warrants or other recipient of payments under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Millennial Media Inc.)
Exchange Payment. (a) Prior to the Closing Date, Parent shall select a reputable entity reasonably acceptable to the Company to act as exchange agent in the Merger (the “Exchange Agent”). No later than the Closing Date, Parent shall deposit with the Exchange Agent non(i) certificates or evidence of book-certificated entry shares of representing the Parent Class B Common Stock represented by Book-Entry Shares issuable in exchange for outstanding Company Common Stock pursuant to Section 1.5 (Conversion of Shares). The Parent Common ) (provided that any evidence of book entry shares to be issued in respect of Company Restricted Stock so deposited (to the extent consistent with the Exchange Agent, together terms of such shares of Company Restricted Stock) will be subject to trading restrictions and a substantial risk of forfeiture under the terms of the applicable restricted stock agreements) and (ii) cash sufficient to make payments in lieu of fractional shares in accordance with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the “Exchange Fund”Section 1.5 (Conversion of Shares).
(b) Promptly after the First Exchange Agent is retained by Parent (and in any event no more than three days following the Effective Time), the Exchange Agent shall mail to the holders of Company Capital Stock immediately prior to the First Effective Time (including the former Company Noteholders after giving effect to cancellation and conversion of the Company Convertible Notes immediately prior to the Effective Time: ): (i) a letter of transmittal in substantially the form attached hereto as Exhibit D which includes a form to be mutually agreed to by release in favor of the Parties Company and Parent, confidentiality and other provisions on which the Company and Parent will rely (the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Bookbook-Entry Shares entry shares in exchange for the Parent Common Stock and cash amounts payable in accordance with Section 1.5 (Conversion of Shares). Upon surrender of a Company Stock Certificate or Book-Entry Shares and delivery of a completed and duly executed Letter of Transmittal to the Exchange Agent for payment, (A) the holder of such Company Stock Certificate or Book-Entry Shares shall be entitled to receive in exchange therefor the applicable Per Share Merger Consideration for each share evidenced by such Company Stock Certificate or Bookbook-Entry Shares entry shares determined pursuant to Section 1.5 (Conversion of Shares), within 10 Business Days of such surrender and delivery, and (B) the Company Stock Certificate or Bookbook-Entry Shares entry shares so surrendered shall be canceled. No holder of any Company Capital Stock or any instruments convertible into Company Capital Stock shall be entitled to receive any of the consideration in accordance with the preceding sentence without returning the completed and duly executed Letter of Transmittal. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, as a condition to the payment of the consideration hereunder, require the owner of such Company Stock Certificate to provide a reasonably appropriate affidavit to Parent (which may include an indemnity or bond in customary form).
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Exchange Agent, DTC, DTC’s nominees and such other necessary or desirable third-party intermediaries to ensure that the Exchange Agent will transmit to DTC or its nominees as promptly as practicable after the First Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Exchange Agent, DTC, DTC’s nominees, and such other necessary or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger.
(d) Upon surrender to the Exchange Agent of the Shares that (i) are represented by Company Stock Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed Letters of Transmittal and other appropriate transmittal materials required by the Exchange Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Exchange Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Exchange Agent may reasonably request pursuant to the terms and conditions of the Exchange Agent Agreement), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Exchange Agent, DTC, DTC’s nominees, and such other necessary and desirable third-party intermediaries pursuant to this Section 1.9, the holder of such Company Stock Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Exchange Agent to pay and deliver, out of the Exchange Fund, as promptly as practicable to such holders, the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Company Stock Certificates or Book-Entry Shares formerly evidencing the Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate or Book-Entry Shares so surrendered shall be endorsed properly or otherwise be in proper form for transfer , as the case may be, and that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Shares so surrendered, or shall have established to the reasonable satisfaction of the Surviving Entity that such Taxes either have been paid or are not applicable. Until surrendered as contemplated by this Section 1.9(d), each Certificate or Book-Entry Share shall be deemed at any time after the First Effective Time to represent only the right to receive upon such surrender the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). The Merger Consideration paid in respect of Shares upon their surrender or transfer for exchange in accordance with this Section 1.9(d) shall be deemed to have been paid in full satisfaction of all rights pertaining to such Shares. At any time following twelve (12) months after the First Effective Time, holders of Company Stock Certificates or Book-Entry Shares shall be entitled to look to the Surviving Entity (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Company Stock Certificates or Book-Entry Shares held by them.
(e) As of the First Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the First Effective Time, the holders of the Shares outstanding immediately prior to the First Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements.
(f) Each of the Surviving Entity, Parent and Merger Subs shall be entitled to deduct and withhold (or cause the Exchange Agent to deduct and withhold) from any consideration payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirements to deduct and withhold. Each such payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body in accordance with applicable Tax Legal Requirements, such amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(g) If any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if required by the Surviving Entity, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate (which shall not exceed the Merger Consideration payable with respect to such Company Stock Certificate), the Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to this Section 1.9), in exchange for such lost, stolen or destroyed Company Stock Certificate, the applicable Merger Consideration to be paid in respect of the Shares formerly represented by such Company Stock Certificate, as contemplated by this Section 1.9.
(h) None of Neither Parent, the Surviving Entity, the Exchange Agent or Company nor any other Party of their respective Affiliates shall be liable to any holder of Shares for the Merger Consideration or any former holder of Company equity awards for Capital Stock with respect to any amounts payable pursuant shares properly delivered to Section 1.6 (Treatment of Company Warrants and Company Options) delivered in respect of such Share or Company equity awards, respectively, to a any public official pursuant to any applicable abandoned property, property Law or escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Entity or its designee, free and clear of all claims or interest of any Person previously entitled theretoLaw.
(id) Each of Parent, the Company, the Exchange Agent, and their respective agents (each a “Withholding Agent”) will be entitled to deduct and withhold from any amount payable to any Person under this Agreement or any other documents associated with the transaction, the amounts such Withholding Agent is required to deduct and withhold under the Code or any other applicable Law. To the extent that amounts are so withheld and paid over to the applicable Governmental Body, such withheld amounts will be treated as having been paid to the applicable Person in respect of whom such amounts were withheld.
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Exchange Payment. (a) Prior to the Closing DateParent has engaged [***], Parent shall select a reputable entity reasonably acceptable to the Company to act as exchange payment agent in connection with the Merger (the “Exchange Payment Agent”). No On or prior to the Closing and no later than the Closing Date, Parent shall deposit or cause to be deposited with the Exchange Payment Agent non-certificated cash and shall make available through Parent’s transfer agent book entry shares of Parent Common Stock represented by Book-Entry Shares issuable in exchange for outstanding Company Common Stock pursuant to Section 1.5 (Conversion the amount of Shares)the Upfront Merger Consideration. The Parent Common Stock so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the “Exchange Fund”.
(b) Promptly No later than two Business Days after the First Effective Time, the Exchange Payment Agent shall mail (or deliver electronically) to the holders of Company Capital Stock (including pursuant to the conversion of the Company SAFEs) and Company Options, in each case as of immediately prior to the First Effective Time: (i) a letter of transmittal in a substantially the form to be mutually agreed to by the Parties (the “Letter of Transmittal”) attached hereto as Exhibit C, and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book-Entry Shares Certificates, if applicable, in exchange for the amounts payable and shares of Parent Common Stock issuable in accordance with Section 1.5 (Conversion of Shares)1.5. Upon surrender of a Company Stock Certificate or Book-Entry Shares and delivery of a completed and duly executed Letter of Transmittal to the Exchange Payment Agent for payment, together with a duly executed letter of transmittal, (A) the holder of such Company Stock Certificate or Book-Entry Shares shall be entitled to receive in exchange therefor (1) the Per Share Upfront Merger Consideration for each share evidenced by such Company Stock Certificate or Book-Entry Shares Certificate, as determined pursuant to Section 1.5 1.5, (Conversion 2) if and when due and payable, the Per Share Seller Note Consideration for an applicable Seller Note Consideration Distribution for each such share evidenced by such Company Stock Certificate, (3) if and when due and payable, the Per Share Contingent Consideration for an applicable Contingent Payment for each such share evidenced by such Company Stock Certificate, (4) if and when due and payable, the Per Share Adjustment Consideration in respect of Shares)a positive Adjustment Amount for each such share evidenced by such Company Stock Certificate, within 10 Business Days (5) if and when due and payable, the Per Share Representative Reserve Consideration in respect of the distribution of any portion of the Securityholders’ Representative Reserve to the Participating Securityholders for each such surrender share evidenced by such Company Stock Certificate, and delivery(6) if and when due and payable, the Per Share CR Sanjiu Consideration in respect of the distribution of any portion of the CR Sanjiu Payments to the Participating Securityholders for each share evidenced by such Company Common Stock and (B) the Company Stock Certificate or Book-Entry Shares so surrendered shall be canceled. No holder of any Company Capital Stock shall be entitled to receive any of the consideration in accordance with the preceding sentence without returning the completed and duly executed Letter of Transmittal. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, as a condition to the payment of the consideration hereunderhereunder with respect to each share of Company Capital Stock evidenced by such Company Stock Certificate, require the owner of such Company Stock Certificate or Company SAFE to provide a reasonably appropriate affidavit to Parent (which may include an indemnity or bond in customary form).
(c) With . Any payments or by the Payment Agent with respect to Book-Entry Shares held, directly a Seller Note Consideration Distribution or indirectly, through DTC, Parent and the Company shall cooperate Contingent Payment to establish procedures with the Exchange Agent, DTC, DTC’s nominees and such other necessary or desirable third-party intermediaries to ensure that the Exchange Agent will transmit to DTC or its nominees as promptly as practicable after the First Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Exchange Agent, DTC, DTC’s nominees, and such other necessary or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger.
(d) Upon surrender to the Exchange Agent of the Shares that (i) are represented by Company Stock Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed Letters of Transmittal and other appropriate transmittal materials required by the Exchange Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Exchange Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Exchange Agent may reasonably request pursuant to the terms and conditions of the Exchange Agent Agreement), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Exchange Agent, DTC, DTC’s nominees, and such other necessary and desirable third-party intermediaries pursuant to this Section 1.9, the holder of such Company Stock Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Exchange Agent to pay and deliver, out of the Exchange Fund, as promptly as practicable to such holders, the number of whole shares of Parent Common Stock which the aggregate number holders of Company Capital Stock previously represented that have satisfied the requirements set forth in this Section 1.9 shall be made promptly following the receipt by the Payment Agent of the funds payable in connection with such Certificates Seller Note Consideration Distribution or Book-Entry Shares shall have been converted Contingent Payment. In the event that any Participating Securityholder has outstanding loans from the Company as of the Effective Time, the consideration payable, pursuant to Section 1.5 (Conversion of Shares). If or Section 1.6 shall, without duplication, be reduced by an amount equal to the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Company Stock Certificates or Book-Entry Shares formerly evidencing the Shares is registered on the stock transfer books sum of the Company, it shall be a condition outstanding principal plus accrued interest of payment that the Certificate or Book-Entry Shares so surrendered shall be endorsed properly or otherwise be in proper form for transfer , such Participating Securityholders’ loans as the case may be, and that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment Effective Time.
(b) Any portion of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Shares so surrendered, or shall have established to the reasonable satisfaction of the Surviving Entity that such Taxes either have been paid or are not applicable. Until surrendered as contemplated by this Section 1.9(d), each Certificate or Book-Entry Share shall be deemed at any time after the First Effective Time to represent only the right to receive upon such surrender the number of whole shares of Parent Common Stock which the aggregate number of Company Capital Stock previously represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 1.5 (Conversion of Shares). The Merger Consideration paid in respect of Shares upon their surrender or transfer for exchange amounts payable in accordance with this Section 1.9(d) shall be deemed Sections 1.5 or 1.6 that remains undistributed by the Payment Agent to have been paid in full satisfaction of all rights pertaining to such Shares. At any time following twelve (12) months after the First Effective Time, holders of Company Stock Certificates or Book-Entry Shares shall be entitled to look to Company SAFEs as of the Surviving Entity first anniversary of the Effective Time (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Upfront Merger Consideration that may be payable upon due surrender Consideration), the second anniversary of the Company Stock Certificates or Book-Entry Shares held by them.
Effective Time (e) As of the First Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration Seller Note Consideration) or the first anniversary of transfers of Shares on the records of the Company. From and after the First Effective Time, the holders of the Shares outstanding immediately prior any Contingent Payment Trigger (with respect to the First Effective Time shall cease to have any rights aggregate Per Share Contingent Consideration with respect to such Shares except as otherwise provided herein Contingent Payment Trigger) shall be delivered to Parent upon demand, and any holders of Company Securities who have not theretofore surrendered the documentation contemplated under this Section 1.9 shall thereafter only look to Parent for satisfaction of their claims for the cash amounts payable and shares to be issued in accordance with Sections 1.5 or by applicable Legal Requirements1.6.
(fc) Each of Neither Parent, the Surviving Entity, Parent and Merger Subs Entity nor any of their respective Affiliates shall be entitled liable to deduct and withhold (any holder or cause the Exchange Agent former holder of Company Capital Stock or Company SAFE with respect to deduct and withhold) from any consideration payable amounts properly delivered to any public official pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirements to deduct and withhold. Each such payor shall take all action that may be necessary to ensure that any such amounts so deducted abandoned property Law or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body in accordance with applicable Tax Legal Requirements, such amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the Person to whom such amounts would otherwise have been paidescheat Law.
(gd) If any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if required by the Surviving Entity, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate (which shall not exceed the Merger Consideration payable with respect to such Company Stock Certificate), the Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to this Section 1.9), in exchange for such lost, stolen or destroyed Company Stock Certificate, the applicable Merger Consideration to be paid in respect of the Shares formerly represented by such Company Stock Certificate, as contemplated by this Section 1.9.
(h) None Each of Parent, the Surviving Entity, the Exchange Agent or any other Party shall be liable to any holder of Shares for the Merger Consideration or any holder of Company equity awards for any amounts payable pursuant to Section 1.6 (Treatment of Company Warrants and Company Options) delivered in respect of such Share or Company equity awards, respectively, to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Entity or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(i) Each of Parent, the Company, the Exchange Payment Agent, and their respective agents (each a “Withholding Agent”) will be entitled to deduct and withhold from any amount payable to any Person under this Agreement or any other documents associated with the transaction, the amounts such Withholding Agent is required to deduct and withhold under the Code or any other Law; provided that, other than with respect to any compensatory amounts, any Person making any such deduction or withholding shall have first notified the Person in respect of whom such deduction or withholding is made of its intent to deduct or withhold, together with an explanation of the legal requirement for such deduction or withholding, and such Persons shall have discussed in good faith whether such deduction or withholding can be mitigated to the extent permitted under applicable Lawlaw, including as applicable, through the provision of an IRS Form W-9 or other similar form. To the extent that amounts are so withheld and paid over to the applicable Governmental BodyBody or other Person, such withheld amounts will be treated as having been paid to the applicable Person in respect of whom such amounts were withheld. Notwithstanding the foregoing, the payment of any amounts due pursuant to this Agreement that are subject to compensatory payroll tax reporting, and any required withholdings thereon pursuant to this Section 1.9(d), shall be made through the ordinary payroll systems of the applicable entity.
(e) Following the Effective Time, no dividends or other distributions with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock that the holder thereof has the right to receive upon the surrender thereof until the holder thereof shall surrender such Company Stock Certificate in accordance with this Section 1.9. Promptly following the surrender of a Company Stock Certificate in accordance with this Section 1.9, there shall be paid to the record holder thereof, without interest, the amount of any dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock.
(f) The shares of Parent Common Stock, any dividends or other distributions payable pursuant to Section 1.9(e) issued and paid upon the surrender for exchange of Company Stock Certificates in accordance with the terms of this Section 1.9 shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the shares of Company Capital Stock formerly represented by such Company Stock Certificates.
(g) No fractional shares of Parent Common Stock shall be issued, no certificates for any such fractional shares shall be issued and no cash payment in lieu of any fractional share shall be paid to any Participating Securityholder in connection with the Merger. Any fraction of a share of Parent Common Stock issuable to a Participating Securityholder pursuant to this Agreement shall, after aggregating all such issuable shares, be rounded down to the nearest whole number.
(h) In paying any consideration payable under Sections 1.5, 1.6, 1.9, 1.10, 1.11 or 1.13, Parent shall be entitled to rely on any Closing Payment Schedule or any applicable Future Payment Schedule. Notwithstanding anything else to the contrary contained in this Agreement, in no event shall the aggregate consideration payable by Parent, Merger Sub or the Surviving Entity to the Participating Securityholders in connection with the transactions contemplated hereby exceed the sum of the Upfront Merger Consideration, the Seller Note, any positive Adjustment Amount, the CR Sanjiu Payments, the aggregate amount of any distribution of the Securityholders’ Representative Reserve to the Participating Securityholders (if any) and, to the extent earned pursuant to the terms of this Agreement, any applicable Contingent Payments.
(i) If Parent disputes in good faith the accuracy of any Future Payment Schedule provided to Parent by the Securityholders’ Representative, Parent and the Securityholders’ Representative shall for a period of [***] Business Days following Parent’s delivery to the Securityholders’ Representative of notice of such dispute engage in good faith negotiations to resolve such dispute and Parent shall not be required to make the applicable payments corresponding to such Future Payment Schedule until [***] Business Days following the resolution of such dispute. In the event that Parent and the Securityholders’ Representative are unable to resolve such dispute, the dispute shall be submitted to the Dispute Auditor for resolution in accordance with Section 1.10(b) mutatis mutandis.
(j) Notwithstanding anything to the contrary herein, Parent may offset an amount equal to the Closing Date Transaction Expenses or Post-Closing Transaction Expenses that become due and payable following the Effective Time, if any, from the CR Sanjiu Payments, positive Adjustment Amount, the Seller Note or any Contingent Payments.
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Samples: Merger Agreement (Chimerix Inc)
