Payment and Exchange of Certificates. (a) Following the date of this Agreement and in any event not less than five (5) Business Days prior to the mailing of the Joint Proxy Statement/Prospectus to the stockholders of the Company, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as exchange agent (the “Exchange Agent”) for purposes of, among other things, paying the Merger Consideration. At or prior to the Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of Certificates, Book-Entry Shares, Company Preferred Shares, Options and Restricted Stock Awards, cash and certificates, or at Parent’s option, shares in book entry form, representing the shares of Parent Common Stock to be issued in the Merger, in the respective amounts sufficient to pay the aggregate Merger Consideration to which all holders of Company Common Shares, Company Preferred Shares, Options and Restricted Stock Awards become entitled pursuant to Article I and such cash in lieu of fractional shares to be paid pursuant to Section 2.1(e) (the “Aggregate Merger Consideration”) (the Aggregate Merger Consideration and any proceeds thereof being hereinafter referred to as the “Exchange Fund”).
(b) The Exchange Agent shall invest the cash included in the Exchange Fund as directed in writing by Parent in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest and/or (iii) commercial paper obligations rated A-1 or P1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or a combination of the foregoing or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1,000,000,000 and, in any such case, no such instrument shall have a maturity exceeding three months. Any interest and other income resulting from such investments shall be paid to Parent at the Closing and shall be income of Parent. If for any reason (including losses) the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, Parent shall promptly deposit cash into the Exchange Fund in an amount sufficient to fully satisfy such cash payment obligations.
(c) Promptly, and in any event no later than three (3) Business Days, following the Effective Time, Paren...
Payment and Exchange of Certificates. (a) Following the date of this Agreement and in any event not less than three Business Days prior to the mailing of the Proxy Statement to the stockholders of the Company, Parent or Acquisition Sub shall designate a bank or trust company reasonably acceptable to the Company to act as Paying Agent in connection with the Merger (the “Paying Agent”). At or prior to the Effective Time, Parent will provide to, or cause the Surviving Corporation to provide to, and shall deposit in trust with, the Paying Agent, the aggregate consideration to which stockholders of the Company become entitled under this Article III. Until used for that purpose, the funds shall be invested by the Paying Agent, as directed by Parent or the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Services Inc. or Standard & Poor’s Corporation, or in deposit accounts, certificates of deposit or banker’s acceptances of, repurchase or reverse repurchase agreements with, or Eurodollar time deposits purchased from, commercial banks, each of which has capital, surplus and undivided profits aggregating more than $500 million (based on the most recent financial statements of the banks which are then publicly available at the SEC or otherwise); provided that no such investment or losses thereon shall affect the Per Share Merger Consideration payable to former stockholders of the Company, and Parent shall promptly provide, or shall cause the Surviving Corporation to promptly provide, additional funds to the Paying Agent for the benefit of the former stockholders of the Company in the amount of any such losses.
(b) Promptly after the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each person who was a record holder of Company Common Stock immediately prior to the Effective Time, whose shares were converted pursuant to Article III into the right to receive the Per Share Merger Consideration, (i) a form of letter of transmittal for use in effecting the surrender of stock certificates which immediately prior to the Effective Time represented Company Common Stock (each, a “Certificate”) in order to receive payment of the Per Share Merger Consideration (which shall specify that delivery shall be effected, and risk of loss...
Payment and Exchange of Certificates. (a) Immediately prior to the Effective Time of the Merger, Acquiror shall instruct the transfer agent for the Acquiror Common Stock in its role as the exchange agent (the "Exchange Agent") to issue and deliver to each Holder, promptly after such Holder has surrendered the appropriate certificates representing Company Shares and a Representation Letter (or, in the case of Holders of Options, upon delivery of a Holder Acknowledgment prior to Closing), as well as any other customary documentation reasonably requested by the Exchange Agent, to the Acquiror at an address designated by such Holder or otherwise at such Holder's direction, stock certificates representing a number of shares of Acquiror Common Stock calculated in accordance with Section 1.1(d) (collectively, the "Acquiror Certificates").
(b) Concurrently with the Effective Time of the Merger, Acquiror shall pay to the Exchange Agent by wire transfer of immediately available funds an amount equal to the Cash Merger Consideration (less the Initial Escrow Amount). The Exchange Agent shall pay to each Holder, promptly after such Holder has surrendered the appropriate certificates representing Company Shares (or, in the case of Options, upon delivery of a Holder Acknowledgment to the Acquiror prior to Closing) to the Exchange Agent, by wire transfer of immediately available funds to an account designated by such Holder, in the case of a Holder of Company Shares, or by check to an address designated by such Holder, in the case of a Holder of Options, an amount equal to such Holder's portion of the Cash Merger Consideration into which such Holder's Company Shares and/or Options shall have been converted as a result of the Merger, calculated in accordance with Section 1.1(d) or 1.1(e), as applicable (less a portion of such Holder's portion of the Cash Merger Consideration equal to the Initial Escrow Amount, multiplied by such Holder's Applicable Percentage), which shall be deposited in escrow in accordance with Section 1.4 and the Escrow Agreement; provided, however, that any payment (including shares of Acquiror Common Stock) with respect to Options held by employees of the Company or any of its Subsidiaries ("Employee Options") shall be reduced by the amount of any taxes required to be withheld under applicable law with respect to such payments and amounts so withheld shall be paid by the Acquiror to the Surviving Corporation for disbursement to the applicable taxing authority. The Surviving Corporation s...
Payment and Exchange of Certificates. (a) At or immediately following the Effective Time (and in any event on the Closing Date), Buyer shall deliver or cause to be delivered to an exchange agent to be mutually agreed upon by Buyer and the Holder Representative prior to Closing (in such capacity, the “Exchange Agent”), to be paid, on behalf of Buyer, to the holders of shares of Company Stock (other than Dissenting Stockholders and the Company Warrants and to the Surviving Corporation to be paid to the Vested Optionholders, in each case entitled to receive a portion of the Merger Consideration pursuant to Section 3.1, (v) the Estimated Merger Consideration plus (w) the Aggregate Liquidation Preference less (x) the product of (A) the number of Dissenting Shares and (B) the Estimated Per Share Merger Consideration (determined based upon the Estimated Merger Consideration and before giving effect to the adjustments provided for in Section 3.6) by wire transfer of immediately available funds (such amount, the “Funding Amount”); provided, however, that Buyer shall promptly thereafter deposit with the Exchange Agent by wire transfer of immediately available funds any amounts by which the Funding Amount increases due to any Dissenting Shares becoming non-Dissenting Shares in accordance with Section 3.12 for the benefit of the holders thereof. Buyer may increase the amount of the Funding Amount from time to time by the amount of (A) any Excess Payment or (B) any other amounts to be paid by or on behalf of Buyer hereunder, in each case to the extent that the Exchange Agent shall be utilized to facilitate payment of such amounts to the Pre-Closing Holders, in which case Buyer shall direct the Exchange Agent to distribute such amounts to the Pre-Closing Holders in accordance with this Agreement as promptly as practicable following the deposit of such amounts with the Exchange Agent.
(b) Promptly following the Closing (and in any case within three (3) days following the Closing), Buyer shall mail or cause to be mailed to each Pre-Closing Holder (other than the Vested Optionholders) a Letter of Transmittal, together with any notice required pursuant to Section 262 of the DGCL and a request to have such Pre-Closing Holder deliver the Company Stock Certificate(s) representing such Pre-Closing Holder’s Company Shares and a duly executed and completed Letter of Transmittal to the Company (with a copy to Buyer). After the Effective Time, each Pre-Closing Holder of an outstanding Company Stock Certificate, upon su...
Payment and Exchange of Certificates. (a) Prior to the mailing of the proxy statement/prospectus to be included in the registration statement on Form S-4 to be filed by Parent with the SEC (as defined in Section 3.4(a)) to register the shares of Parent Common Stock and CVRs to be issued in connection with the Merger (such proxy statement/prospectus, together with any amendments or supplements thereto, the “Proxy Statement/Prospectus”, and such registration statement, together with any amendments, supplements and exhibits thereto, the “Registration Statement”), Parent shall appoint a commercial bank or trust company reasonably acceptable to the Company to act as paying agent hereunder (the “Paying Agent”) for the purpose of payment of the aggregate Merger Consideration to be paid and delivered to Securityholders (as defined in Section 2.2(b)) under this ARTICLE II. Parent will enter into a paying agent agreement in form and substance reasonably acceptable to the Company at least two Business Days prior to the mailing of the Proxy Statement/Prospectus to the stockholders of the Company. As used herein, “Business Day” means any day of the year on which national banking institutions in New York are open to the public for conducting business and are not required or authorized to close.
Payment and Exchange of Certificates. (a) On the Closing Date, FDC shall provide written notice to Acquiror of its best estimate of the amount of FDC Debt as of the Closing, the Retirement Payments and the Deal Bonuses (collectively and together with the estimate of the Holder Allocable Expenses provided to Acquiror pursuant to Section 1.4, the "Closing Adjustments").
(b) Immediately prior to the Effective Time of the Merger, Acquiror will pay to an exchange agent (the "Exchange Agent") selected by FDC and reasonably acceptable to Acquiror, by wire transfer of immediately available funds, an amount (the "Funding Amount") equal to (i) the Merger Consideration, minus (ii) the product of (x) the number of shares of FDC Common Stock held by all Dissenting Shareholders and (y) the Cash Per Fully-Diluted FDC Share, minus, if applicable, (iii) the Tax-Effected Deduction Dispute Amount (as defined below), minus, (iv) the Indemnification Escrow Amount (as defined below).
(c) If Acquiror maintains that a Section 2.12 Material Breach (as defined below) will exist at or as of Closing (a "Compensation Deduction Dispute"), it shall notify FDC in writing of the basis for such contention in reasonable detail no later than three (3) business days after receipt of the Shareholder Vote Certification, but in no event shall Acquiror be required to deliver such notification earlier than five (5) Business Days prior to Closing, together with the amount of the Deal Bonuses, the Retirement Payments and the Option Amounts it maintains are not deductible for federal income tax purposes contrary to the representation in the first sentence of Section 2.12 (the "Disputed Compensation Deduction Amount"). The parties will use their mutual good-faith efforts to resolve the Compensation Deduction Dispute prior to Closing. If the parties remain in disagreement at Closing with respect to whether a Section 2.12 Material Breach existed at or as of Closing, then Acquiror shall deposit in escrow with the Indemnification Escrow Agent the Disputed Compensation Deduction Amount times 38 percent (the "Tax-Effected Deduction Dispute Amount"), and the parties will arbitrate the Compensation Deduction Dispute in accordance with the expedited procedures of the commercial arbitration rules of the American Arbitration Association in Washington, D.C., and the Tax-Effected Deduction Dispute Amount shall be disbursed in accordance with the final ruling of such arbitration. A "Section 2.12 Material Breach" shall mean a breach of the first sentenc...
Payment and Exchange of Certificates. 1.3.1 At the Effective Time, Acquiror or Merger Sub shall cause the Surviving Corporation to possess an amount in cash that, together with cash of the Company on hand at such time, shall be sufficient to pay (a) the aggregate Merger Consideration payable pursuant to Sections 1.2.2(a) and 1.2.3(a), (b) the Net Indebtedness and Preferred Stock Amount as of the Closing Date, (c) the amount of Transaction Expenses listed on the certificate delivered pursuant to Section 1.1.5 and (d) the Escrow Amount.
1.3.2 At the Effective Time, the Company will deliver or cause to be delivered to each holder of Stock Options being cancelled pursuant to Section 1.2.3 an amount in cash equal to the Merger Consideration payable to such holder pursuant to Section 1.2.3(a).
1.3.3 Prior to the Effective Time, the Company shall mail to each holder of record of Company Shares (a) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the certificates or other instrument(s) evidencing the Company Shares (the "SHARE CERTIFICATES") shall pass, only upon proper delivery of a Share Certificate to the Company, and which shall be in such form and have such other provisions as Acquiror and the Company may reasonably specify prior to the Effective Time) and (b) instructions for use in effecting the surrender of Share Certificates pursuant to such letter of transmittal. Upon the later to occur of (i) the surrender to the Company of a Share Certificate, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions and (ii) the Effective Time, subject to the terms and conditions of this Agreement, the Company shall pay to the holder of such Share Certificate in exchange therefor the amounts set forth in Section 1.2 for each Company Share formerly represented by such Share Certificate, and the Share Certificate so surrendered shall forthwith be cancelled. Except as otherwise specifically provided herein, no interest shall accrue or be paid on the amounts set forth in Section 1.2 upon the surrender of any Share Certificate for the benefit of the holder of such Share Certificate. Until surrendered and exchanged as contemplated by this Section 1.3.3, each Share Certificate (other than certificates representing Dissenting Shares and shares to be cancelled pursuant to Section 1.2.4) shall, from and after the...
Payment and Exchange of Certificates. (a) Prior to the Effective Time, the Exchange Agent will mail to each Holder (i) a Letter of Transmittal and (ii) instructions for use in effecting the surrender of any Certificates in exchange for the Merger Consideration. Upon surrender to the Exchange Agent of a Certificate for cancellation, together with such Letter of Transmittal, appropriately completed and duly executed, and such other documents as may reasonably be required by the Exchange Agent, the Holder shall be entitled to receive from the Exchange Agent in exchange therefor (subject to the provisions of Section 3.4) such portion of the Merger Consideration to which such Holder is entitled pursuant to Section 3.1(c). Pending such surrender and exchange of a Holder’s Certificate(s), a Holder’s Certificate(s) shall be deemed for all purposes to evidence such Holder’s right to receive the portion of the Merger Consideration into which such Common Shares shall have been converted by the Merger and each Holder’s right to receive any Merger Consideration is expressly conditioned on the receipt by the Exchange Agent of the Letter of Transmittal, duly completed and executed by or on behalf of the Holder in accordance with the terms of this Agreement and the Letter of Transmittal, and Certificates for Common Shares that are converted by the Merger.
Payment and Exchange of Certificates. (a) Prior to the Effective Time, Parent shall appoint a commercial bank or trust company reasonably acceptable to the Company to act as paying agent hereunder (the "Paying Agent") for the payment of the aggregate consideration to be paid to the holders of Common Stock under this Article II. Parent and Paying Agent will enter into a paying agent agreement in form and substance reasonably acceptable to the Company prior to the Effective Time.
(b) Upon the filing of the Articles of Merger with the Secretary of State of Massachusetts, Parent or Sub shall deposit with the Paying Agent cash in an amount sufficient to pay the aggregate consideration to which the holders of Common Stock (other than Excluded Company Shares, Restricted Stock and Dissenting Company Shares) become entitled under this Article II (such amounts, the "Exchange Fund"
Payment and Exchange of Certificates. (a) Following the date of this Agreement and in any event not less than five (5) Business Days prior to the mailing of the Proxy Statement to the shareholders of the Company, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as exchange agent (the "Exchange Agent") for purposes of, among other things, paying the Merger
