Exchange of Certificates (a) At the Closing, certificates representing not less than one hundred percent (100%) of the issued and outstanding shares of Company Common Stock shall be surrendered for cancellation and termination in the Merger. At the Effective Time, each certificate representing issued and outstanding shares of Company Common Stock (each, a “Certificate”) shall be canceled in exchange for the amount of Merger Consideration pursuant to Section 2.1. After payment by the Company (or by Parent as directed by the Company) of all fees and expenses incurred by the Company in connection with this Agreement in accordance with Section 7.5 from the Cash Consideration portion of the Merger Consideration, the remaining Merger Consideration shall be distributed as follows (as set forth on Schedule 2.3) to the extent Certificates have been surrendered at Closing (or thereafter upon surrender of Certificates) the remaining Cash Consideration shall be wired to an account or accounts designated by the Shareholders, less $1,135,000 which shall be placed in escrow to partially secure the obligations pursuant to Article XII hereof (the “Cash Escrow”). Until surrendered in connection herewith, each outstanding Certificate which immediately prior to the Effective Time represented shares of Common Stock shall be deemed for all corporate purposes to evidence ownership of the amount of cash and Stock issuable upon conversion of such shares of Common Stock, but shall, subject to applicable appraisal rights under the PBCL, have no other rights. Subject to appraisal rights under the PBCL, from and after the Effective Time, the holders of shares of Common Stock shall cease to have any rights in respect of such shares and their rights shall be solely in respect of the amount of cash and into which such shares of Common Stock have been converted.
(b) If any cash is to be paid in the name of a person other than the person in whose name the Certificate(s) surrendered in exchange therefor is registered, it shall be a condition to the payment of such cash that (i) the Certificate(s) so surrendered shall be transferable, and shall be properly assigned, endorsed or accompanied by appropriate stock powers, (ii) such transfer shall otherwise be proper, and (iii) the person requesting such transfer shall pay Parent, or its exchange agent, any transfer or other taxes payable by reason of the foregoing or establish to the reasonable satisfaction of Parent that such taxes have been paid or are not required to be paid. Notwithstanding the foregoing, neither Parent nor the Company shall be liable to a holder of shares of Common Stock for cash paid to such holder pursuant to the provisions of Section 1.2(a) of this Agreement that are delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed, Parent shall issue in exchange for such lost, stolen or destroyed Certificate the cash issuable in exchange therefor pursuant to the provisions of Section 1.2(a) of this Agreement. The Board of Directors of Parent may in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to provide to Parent an indemnity agreement against any claim that may be made against Parent with respect to the Certificate alleged to have been lost, stolen or destroyed.
Conversion of Shares Exchange of Certificates Section 2.1 Effect of the initial Merger on Capital Stock 4 Section 2.2 Exchange of Certificates 6 Section 2.3 Treatment of Company Equity Awards 9 Section 2.4 Effect of the Subsequent Merger on Capital Stock 10 Section 2.5 Further Assurances 10
Merger Consideration As of the Effective Time, by virtue of the Merger and without any action on the part of Acquisition, OilQuip, or A-C:
(a) Each share of OilQuip Common Stock, issued and outstanding immediately prior to the Effective Time will be converted, without any action on the part of the holders thereof (the "Shareholders"), into (i) 40 shares of the common stock, par value $0.15 per share, of A-C ("A-C Common Stock"), and (ii) the right to receive 960 shares of Common Stock on the Amendment Date (as defined in Section 7.11); provided that no fractional shares of A-C Common Stock shall be delivered (and the number of shares of A-C Common Stock to be delivered to any Shareholder shall be rounded down to the nearest whole number) and the Shareholders shall not be entitled to cash in lieu of fractional shares; provided further that no more than an aggregate of 10,000,000 shares of A-C Common Stock shall be issued or issuable at the Effective Time and on the Amendment Date pursuant to the Merger. Immediately following the Effective Time, the Shareholders shall deliver to A-C the certificates representing the OilQuip Common Stock, and A-C shall cause A-C's transfer agent to deliver to the Shareholders certificates representing the A-C Common Stock described in (i) above in accordance with Exhibit A hereto; and immediately following the Amendment Date, A-C shall cause A-C's transfer agent to deliver to the Shareholders certificates representing the A-C Common Stock described in clause (ii) above in accordance with Exhibit A. The A-C Common Stock issued pursuant to this Section 3.1(a) shall be duly authorized, fully paid and non-assessable. The Shareholders shall have no right to transfer or assign the right to receive the A-C Common Stock prior to the issuance thereof.
(b) Each share of Acquisition Common Stock issued and outstanding immediately prior to the Effective Time will be converted, without any action on the part of the holder thereof, into one (1) duly and validly issued, fully paid and non-assessable share of OilQuip Common Stock. All shares of A-C Common Stock issued in accordance with Section 3.1 shall be deemed to be in full satisfaction of all rights pertaining to shares of OilQuip Common Stock held by the Shareholders, and shall be duly authorized, fully paid and non-assessable.
Registration of Certificates; Transfer and Exchange of Certificates (a) The Indenture Trustee initially shall be the registrar (the “Certificate Registrar”) for the purpose of registering Certificates and Transfers of Certificates as herein provided. The Certificate Registrar shall cause to be kept, at the office or agency maintained pursuant to Section 3.8, a register (the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of Certificates and the registration of Transfers of Certificates. Upon any resignation of any Certificate Registrar, the Owner Trustee shall, upon receipt of written instructions from the Depositor, promptly appoint a successor.
(b) The Certificates may not be acquired with the plan assets of any (i) “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (ii) “plan” described in Section 4975(e)(1) of the Code, including individual retirement accounts and Xxxxx plans, that is subject to the provisions of Section 4975 of the Code, (iii) entity whose underlying assets include “plan assets” within the meaning of the Plan Asset Regulation by reason of an employee benefit plan’s or plan’s investment in such entity or (iv) employee benefit plan or arrangement not subject to Title I of ERISA or Section 4975 of the Code (each of (i) through (iv), a “Plan”), other than any Plan that is not subject to Title I of ERISA or Section 4975 of the Code and whose acquisition of a Certificate would not constitute or result in a violation of any applicable law that is substantially similar to Title I of ERISA or Section 4975 of the Code (“Similar Law”). Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have represented and warranted that such Certificateholder is either (i) not a Plan and is not a Person acting on behalf of a Plan or a Person using the assets of a Plan to effect the transfer of such Certificate, or (ii) a Plan that is not subject to Title I of ERISA or Section 4975 of the Code and whose acquisition of a Certificate would not constitute or result in a violation under any Similar Law. Any person who is not an affiliate of the Seller and acquires more than 49.9% of the Certificates will be deemed to represent that it is not a “party in interest” (within the meaning of ERISA) or a “disqualified person” (within the meaning of Section 4975(e)(2) of the Code) with respect to any Plan, other than a Plan that it sponsors for the benefit of its employees, and that no Plan with respect to which it is a party in interest or disqualified person has or will acquire any interest in the Notes. To the extent permitted under applicable law (including, but not limited to, ERISA), neither the Owner Trustee nor the Certificate Registrar shall be under any liability to any Person for any registration of transfer of any Certificate that is in fact not permitted or for taking any other action with respect to such Certificate under the provisions of this Trust Agreement so long as such transfer was registered by the Owner Trustee or the Certificate Registrar in accordance with this Trust Agreement.
(c) Upon surrender for registration of Transfer of any Certificate at the office or agency of the Certificate Registrar to be maintained as provided in Section 3.8, and upon compliance with any provisions of this Trust Agreement relating to such Transfer, the Owner Trustee shall execute on behalf of the Trust and the Owner Trustee shall authenticate and deliver to the Certificateholder making such surrender, in the name of the designated transferee or transferees, one or more new Certificates in any authorized denomination evidencing the same aggregate interest in the Trust. Each Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form X-0XXX-X, X-0XXX or W-9, as applicable, and such other documentation as may be reasonably required by the Owner Trustee in order to comply with Applicable Anti-Money Laundering Law, each in a form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his attorney duly authorized in writing. Each Certificate presented or surrendered for registration of Transfer or exchange shall be canceled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of Transfer or exchange of Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any Transfer or exchange of Certificates. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), each owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(d) As a condition to the registration of any Transfer of any Certificate:
(i) the prospective transferee shall be required to represent in writing to the Owner Trustee, the Depositor and the Certificate Registrar that it has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations;
(ii) the prospective transferee shall be required to represent in writing to the Owner Trustee, the Depositor and the Certificate Registrar that it either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for United States federal income tax purposes or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 50% or more (or such other percentage as the transferor may establish prior to the time of such proposed transfer) of the value of such interests to be attributable to such transferee’s ownership of Certificates;
(iii) the prospective transferee shall be required to represent in writing to the Owner Trustee, the Depositor and the Certificate Registrar that it is either (i) not a Plan and is not a Person acting on behalf of a Plan or a Person using the assets of a Plan to effect the transfer of such Certificate, or (ii) a Plan that is not subject to Title I of ERISA or Section 4975 of the Code and whose acquisition of a Certificate would not constitute or result in a violation under any Similar Law;
(iv) the Certificateholder provides to the Owner Trustee and the Depositor an opinion of independent counsel that such action will not cause the Issuer to be treated as an association (or publicly traded partnership) taxable as a corporation for federal income tax purposes;
(v) such transferee or assignee agrees to take positions for tax purposes consistent with the tax positions agreed to be taken by the Certificateholder; and
(vi) in connection with any transfer of less than all of the interests in the Certificates, the transferor and transferee shall specify the respective interests in the Certificates to be held by the transferor and transferee, which interests may be determined by a formula or on any other basis agreed by the transferor and transferee. No Certificate (other than the Certificates issued to and held by the Depositor) may be subdivided upon transfer or exchange in a manner such that the resulting Certificate represents less than a 2.50% fractional undivided interest in the Issuer (or such other amount as the Depositor may determine in order to prevent the Issuer from being treated as a “publicly traded partnership” under Section 7704 of the Code).
(e) No Certificateholder shall Transfer any Certificate initially held by it unless such Transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable State securities laws, or is made in a transaction which does not require such registration or qualification. If a Transfer is to be made in reliance upon an exemption from the Securities Act and under applicable State securities laws, (i) the Certificate Registrar may require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor substantially to the effect that such Transfer may be made pursuant to an exemption from the Securities Act and applicable State securities laws and describing the applicable exemption and the basis therefor, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Owner Trustee, and (ii) the Certificate Registrar may require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar and the Depositor setting forth the facts surrounding such Transfer.
(f) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of such Transfer will be, a Certificateholder.
(g) During the period described in 17 CFR Part 246.12(f)(1), no Certificateholder may Transfer any Certificate until the expiration of such period; provided, that, during such period, such Certificateholder may Transfer any Certificate to CarMax or any “majority-owned affiliate” (as such term is defined in 17 CFR Part 246.2) of CarMax in accordance with the restrictions contained in 17 CFR Part 246.12. Any purported transfer of a Certificate not in accordance with this Section 3.4(g) shall be null and void and shall not be given effect for any purpose whatsoever.
Effect of the Merger on Capital Stock Exchange of Certificates Equity-Based Awards
Merger Consideration Exchange Procedures Merger Consideration 14 Section 3.2 Rights As Unitholders; Unit Transfers 15 Section 3.3 Exchange of Certificates 15 Section 3.4 Anti-Dilution Provisions 18 Section 3.5 Equity Awards 19
Transfer and Exchange of Certificates (a) A Certificate (other than Book-Entry Certificates which shall be subject to Section 3.09 hereof) may be transferred by the Holder thereof only upon presentation and surrender of such Certificate at the office of the Certificate Registrar duly endorsed or accompanied by an assignment duly executed by such Holder or his duly authorized attorney in such form as shall be satisfactory to the Certificate Registrar. Upon the transfer of any Certificate in accordance with the preceding sentence, the Trustee shall execute, and the Authenticating Agent shall authenticate and deliver to the transferee, one or more new Certificates of the same Class and evidencing, in the aggregate, the same aggregate Certificate Principal Amount (or Notional Amount) as the Certificate being transferred. No service charge shall be made to a Certificateholder for any registration of transfer of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any registration of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any number of new Certificates of the same Class, in authorized denominations, representing in the aggregate the same Certificate Principal Amount (or Notional Amount) as the Certificate surrendered, upon surrender of the Certificate to be exchanged at the office of the Certificate Registrar duly endorsed or accompanied by a written instrument of transfer duly executed by such Holder or his duly authorized attorney in such form as is satisfactory to the Certificate Registrar. Certificates delivered upon any such exchange will evidence the same obligations, and will be entitled to the same rights and privileges, as the Certificates surrendered. No service charge shall be made to a Certificateholder for any exchange of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any exchange of Certificates. Whenever any Certificates are so surrendered for exchange, the Trustee shall execute, and the Authenticating Agent shall authenticate, date and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original issuance or subsequent transfer, each Holder of such a Certificate acknowledges the restrictions on the transfer of such Certificate set forth thereon and agrees that it will transfer such a Certificate only as provided herein. The following restrictions shall apply with respect to the transfer and registration of transfer of a Restricted Certificate to a transferee that takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a Restricted Certificate if the requested transfer is (x) to the Depositor or an affiliate (as defined in Rule 405 under the 0000 Xxx) of the Depositor or (y) being made to a "qualified institutional buyer" (a "QIB") as defined in Rule 144A under the Securities Act of 1933, as amended (the "Act") by a transferor that has provided the Certificate Registrar with a certificate in the form of Exhibit G hereto; and
Adjustment to Merger Consideration The Merger Consideration shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Stock occurring on or after the date hereof and prior to the Effective Time.
Surrender and Exchange of Certificates Promptly after the Effective Time and upon (i) surrender of a certificate or certificates representing shares of Company Common Stock that were outstanding immediately prior to the Effective Time or an affidavit and indemnification in form reasonably acceptable to counsel for the Parent stating that such Stockholder has lost their certificate or certificates or that such have been destroyed and (ii) delivery of a Letter of Transmittal (as described in Section 4 hereof), Parent shall issue to each record holder of the Company Common Stock surrendering such certificate or certificates and Letter of Transmittal, a certificate or certificates registered in the name of such Stockholder representing the number of shares of Parent Common Stock that such Stockholder shall be entitled to receive as set forth in Section 1.5(a)(ii) hereof. Until the certificate, certificates or affidavit is or are surrendered together with the Letter of Transmittal as contemplated by this Section 1.6 and Section 4 hereof, each certificate or affidavit that immediately prior to the Effective Time represented any outstanding shares of Company Common Stock shall be deemed at and after the Effective Time to represent only the right to receive upon surrender as aforesaid the Parent Common Stock specified in Schedule 1.5 hereof for the holder thereof or to perfect any rights of appraisal which such holder may have pursuant to the applicable provisions of the DGCL.
Recitals Merger Consideration Section 5.2(b) Merger Sub.................................................................................................
