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 shall issue certificates for the Surviving Corporation Class B Common Stock to the holders of Management Rollover Shares upon surrender of the certificates representing Management Rollover Shares. (c) Acquiror shall not be obligated to deliver any Cash Merger Consideration or Stock Merger Consideration with respect to any Holder until Acquiror shall have received appropriate certificates representing Company Shares and a Representation Letter (or, in the case of Options, a Holder Acknowledgment prior to Closing). (d) Upon (i) payment by Acquiror to each Holder of such Holder's portion of the Merger Consideration (including any adjustment thereto pursuant to Section 1.8(c)), less the Initial Escrow Amount, (ii) delivery by the Exchange Agent to the Holders of the Acquiror Certificates, if any, (iii) payment by Acquiror of the Retired Company Debt, (iv) payment by Acquiror of the Employee Bonuses to the employees set forth on a schedule to be delivered by the Company to Acquiror prior to Closing, (v) payment by Acquiror to the Holder Representative of the estimated Holder Allocable Expenses pursuant to Section 1.5 hereof, (vi) delivery by Acquiror of the Initial Escrow Amount to the Escrow Agent, and (vii) delivery by the Surviving Corporation of the Surviving Corporation Class B Common Stock, Acquiror shall be deemed to have satisfied its obligations to make payments in respect of the Merger Consideration. (e) Pending surrender and exchange (or, in the case of Options, upon delivery of a Holder Acknowledgment to the Acquiror prior to the Closing), a holder's certificate or certificates for Company Shares, Management Rollover Shares or agreement with respect to Options (if such Holder has delivered a Holder Acknowledgment to the Acquiror prior to the Closing) shall be deemed for all purposes to evidence such holder's entitlement to receive such portion of the Merger Consideration into which such Company Shares, Management Rollover Shares and/or Options shall have been converted by the Merger. (f) Notwithstanding anything to the contrary in this Agreement, no Holder shall be entitled to receive fractional shares of Acquiror Common Stock and each Holder whose Company Shares and/or Options were converted pursuant to the Merger into a portion of the Stock Merger Consideration and who would otherwise have been entitled to receive a fraction of a share of Acquiror Common Stock shall be entitled to receive, in lieu of such fractional share, cash equal to (i) such fraction multiplied by, (ii) the Average Trading Price. As promptly as practicable after the determination of the amount of cash, if any, to be paid to holders of fractional interests in Acquiror Common Stock, Acquiror shall forward payments of such amounts to such holders of fractional interests subject to and in accordance with the terms hereof. No such Holder will be entitled to dividends, voting rights or any other shareholder rights in respect of any fractional share. (g) In the event any certificate for Company Shares or Management Rollover Shares has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, and providing for appropriate indemnification to Acquiror and Exchange Agent reasonably satisfactory to Acquiror, the Acquiror and Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate for Company Shares or Management Rollover Shares the Merger Consideration deliverable in respect thereof as determined in accordance with this Article I. (h) From and after the Effective Time of the Merger, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock which were outstanding immediately prior to the Effective Time of the Merger. If, after the Effective Time of the Merger, certificates representing capital stock of the Company are presented to the Surviving Corporation for any reason they shall be canceled as provided in this Article I. (i) None of Acquiror or the Surviving Corporation shall be liable to any holder of Company Shares and/or Options for Merger Consideration delivered to a public official pursuant to any applicable abandoned property escheat or similar law. (j) Acquiror shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payments under the Code, or any provision of United States federal, state or local, or any foreign, tax law. To the extent that amounts are so withheld or paid over to or deposited with the relevant Governmental Authority by Acquiror, such amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made.
Appears in 1 contract
Samples: Merger Agreement (Usa Interactive)
Payment and Exchange of Certificates. (a) Immediately prior to the Effective Time of the MergerTime, Acquiror Buyer shall instruct the transfer agent for the Acquiror Common Stock in its role as the pay to an 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 selected by the Exchange Agent, Company and reasonably acceptable 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 AgentBuyer, 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 Optionsfunds, an amount (the “Funding Amount”) equal to (i) the Merger Consideration (determined before giving effect to the adjustments provided for in Section 3.4), minus (ii) the product of (A) the number of Dissenting Shares (with respect to Dissenting Preferred Shares, determined as if such Holder's Dissenting Preferred Shares had been converted into shares of Common Stock) and (B) the Cash Per Fully-Diluted Common Share (determined before giving effect to the adjustments provided for in Section 3.4), minus (iii) the Escrow Amount; provided that Buyer will promptly thereafter pay to the Exchange Agent any amounts by which the Funding Amount increases due to any Dissenting Shares becoming Preferred Shares or Common Shares, as applicable, in accordance with Section 3.8; provided, further, that the Funding Amount shall be reduced by the amount to be paid by Buyer with respect to In the Money Options which shall be paid by Buyer to the Company and the Company shall pay such amount (reduced by the amount of any Taxes required to be withheld under applicable Law with respect to such payments, which amounts, so withheld, shall be disbursed by the Company to the applicable taxing authority) to the Pre-Closing Holder thereof. The fees and expenses of the Exchange Agent shall be paid one-half by Buyer and one-half by the Company as a Company Transaction Expense. Upon payment by Buyer of (w) the Funding Amount in accordance with this Section 3.2(a), (x) the amounts required to be paid pursuant to Section 3.2(b), (y) the amounts required to be paid to the parties to Long-Term Incentive Agreements pursuant to the Closing Distribution Schedule and (z) any amounts that may be provided for in Section 3.4 and Section 3.5, the Merger Consideration shall be deemed to have been paid in full by Buyer in accordance with the terms of this Agreement.
(b) After the Effective Time, (x) each Pre-Closing Holder of an outstanding certificate or certificates for Preferred Shares or Common Shares (collectively, the “Certificates”), upon surrender of such Certificates and a completed and duly executed letter of transmittal in substantially the form attached hereto as Annex C (a “Letter of Transmittal”) to the Exchange Agent, and (y) each Pre-Closing Holder of In the Money Options shall be entitled to receive from the Exchange Agent, subject to the provisions of Section 3.4, such portion of the Cash Merger Consideration into which such Holder's Company holder’s Preferred Shares, Common Shares and/or In the Money 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 In the Money Options held by employees of shall be paid to the Company or any of its Subsidiaries and the Company shall pay such amount ("Employee Options") shall be reduced by the amount of any taxes Taxes required to be withheld under applicable law Law with respect to such payments payments, which amounts, so withheld, shall be disbursed by the Company to the applicable taxing authority) to the Pre-Closing Holder thereof; and provided, further, that a portion of the Merger Consideration otherwise payable to each Pre-Closing Holder equal to the product of the Escrow Amount multiplied by such holder’s Escrow Percentage shall be held in escrow in accordance with Section 3.4(d), and the terms and conditions of the Escrow Agreement. Notwithstanding the foregoing, in the event that any Pre-Closing Holder delivers the Certificate(s) representing such Preferred Shares or Common Shares, as applicable, to Buyer at least three (3) Business Days prior to the Closing, Buyer shall pay the amount which such holder is entitled in consideration therefor directly to such holder at the Closing by wire transfer of immediately available funds and the Funding Amount payable to the Exchange Agent shall be reduced by such amounts so withheld (subject to withholding for Taxes, which amounts shall be paid by the Acquiror to the Surviving Corporation Company for disbursement to the applicable taxing authority). The Surviving Corporation shall issue certificates for the Surviving Corporation Class B Common Stock to the holders of Management Rollover Shares upon surrender of the certificates representing Management Rollover Shares.
(c) Acquiror shall not be obligated to deliver any Cash Merger Consideration or Stock Merger Consideration with respect to any Holder until Acquiror shall have received appropriate certificates representing Company Shares and a Representation Letter (or, in the case of Options, a Holder Acknowledgment prior to Closing).
(d) Upon (i) payment by Acquiror to each Holder of Pending such Holder's portion of the Merger Consideration (including any adjustment thereto pursuant to Section 1.8(c)), less the Initial Escrow Amount, (ii) delivery by the Exchange Agent to the Holders of the Acquiror Certificates, if any, (iii) payment by Acquiror of the Retired Company Debt, (iv) payment by Acquiror of the Employee Bonuses to the employees set forth on a schedule to be delivered by the Company to Acquiror prior to Closing, (v) payment by Acquiror to the Holder Representative of the estimated Holder Allocable Expenses pursuant to Section 1.5 hereof, (vi) delivery by Acquiror of the Initial Escrow Amount to the Escrow Agent, and (vii) delivery by the Surviving Corporation of the Surviving Corporation Class B Common Stock, Acquiror shall be deemed to have satisfied its obligations to make payments in respect of the Merger Consideration.
(e) Pending surrender and exchange (or, in the case of Options, upon delivery of a Holder Acknowledgment to the Acquiror prior to the ClosingPre-Closing Holder’s Certificate(s), a holder's certificate or certificates for Company Shares, Management Rollover Shares or agreement with respect to Options (if such Holder has delivered a Holder Acknowledgment to the Acquiror prior to the Closing’s Certificate(s) shall be deemed deemed, at and after the Effective Time, for all purposes to evidence such holder's entitlement ’s right to receive such the portion of the Merger Consideration Consideration, without interest, into which such Company Preferred Shares or Common Shares, Management Rollover Shares and/or Options as applicable, shall have been converted by the Merger.
(fc) Notwithstanding anything to At the contrary in this AgreementClosing, no Holder (i) Buyer shall be entitled to receive fractional shares of Acquiror Common Stock and each Holder whose Company Shares and/or Options were converted pursuant to the Merger into pay a portion of the Stock Merger Consideration and who would otherwise have been entitled to receive a fraction of a share of Acquiror Common Stock shall be entitled to receive, in lieu of such fractional share, cash equal to the Escrow Amount to Wilmington Trust, N.A., as escrow agent of the parties hereto (i) such fraction multiplied bythe “Escrow Agent”), to be held in escrow; provided that Buyer will promptly thereafter pay to the Escrow Agent any amounts by which the Escrow Amount increases due to any Dissenting Shares becoming Preferred Shares or Common Shares in accordance with Section 3.8, (ii) Buyer shall, or shall cause Merger Sub to, pay to the Average Trading Price. As promptly intended beneficiaries thereof (as practicable after identified in writing by the determination Company to Buyer prior to the Closing) the Funded Debt of the Company as set forth in the Debt-Payoff Letters and (iii) Buyer shall pay the intended beneficiaries thereof (as identified in writing by the Company to Buyer prior to the Closing) the Estimated Unpaid Company Transaction Expenses, provided that any such Company Transaction Expenses that are due to an employee of the Company or any Subsidiary shall be paid to the Company and the Company shall pay such amounts (reduced by the amount of cash, if any, any Taxes required to be paid to holders of fractional interests in Acquiror Common Stock, Acquiror shall forward payments of such amounts to such holders of fractional interests subject to and in accordance with the terms hereof. No such Holder will be entitled to dividends, voting rights or any other shareholder rights in respect of any fractional share.
(g) In the event any certificate for Company Shares or Management Rollover Shares has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, and providing for appropriate indemnification to Acquiror and Exchange Agent reasonably satisfactory to Acquiror, the Acquiror and Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate for Company Shares or Management Rollover Shares the Merger Consideration deliverable in respect thereof as determined in accordance with this Article I.
(h) From and after the Effective Time of the Merger, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock which were outstanding immediately prior to the Effective Time of the Merger. If, after the Effective Time of the Merger, certificates representing capital stock of the Company are presented to the Surviving Corporation for any reason they shall be canceled as provided in this Article I.
(i) None of Acquiror or the Surviving Corporation shall be liable to any holder of Company Shares and/or Options for Merger Consideration delivered to a public official pursuant to any withheld under applicable abandoned property escheat or similar law.
(j) Acquiror shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold Law with respect to the making of such payments under the Codepayments, or any provision of United States federalwhich amounts, state or localso withheld, or any foreign, tax law. To the extent that amounts are so withheld or paid over to or deposited with the relevant Governmental Authority by Acquiror, such amounts shall be treated for all purposes of this Agreement as having been paid disbursed by the Company to the person in respect of which such deduction and withholding was madeapplicable taxing authority) to the intended beneficiary thereof within five (5) Business Days after the Closing.
Appears in 1 contract
Payment and Exchange of Certificates. (a) Immediately Subject to the penultimate sentence of Section 3.2(b), immediately prior to the Effective Time of the MergerTime, 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 Buyer shall pay to Xxxxx Fargo Bank, National Association, or another exchange agent selected by the Exchange Agent by wire transfer of immediately available funds an amount equal to Company and Buyer (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 Optionsfunds, an amount (the “Funding Amount”) equal to (i) the Merger Consideration (determined before giving effect to the adjustments provided for in Section 3.4), minus (ii) the product of (A) the number of Dissenting Shares and (B) the Cash Per Fully-Diluted Common Share (determined before giving effect to the adjustments provided for in Section 3.4), minus (iii) the Escrow Amount; provided that Buyer will promptly thereafter pay to the Exchange Agent any amounts by which the Funding Amount increases due to any Dissenting Shares becoming Common Shares in accordance with Section 3.8.
(b) After the Effective Time, (x) each Pre-Closing Holder of an outstanding certificate or certificates for Common Shares (collectively, the “Certificates”), upon surrender of such Holder's Certificates and a letter of transmittal in a form reasonably agreed by Buyer and the Holder Representative (which shall include, among other things, an executed consent to the appointment of the Holder Representative as contemplated by Article XI and customary representations and warranties, including with respect to ownership of the Common Shares, free and clear of all Liens) to the Exchange Agent, and (y) each Pre-Closing Holder of Vested Options shall be entitled to receive from the Exchange Agent in exchange therefor (subject to the provisions of Section 3.4) such portion of the Cash Merger Consideration into which such Holder's Company holder’s Common Shares and/or Vested 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 Vested Options held by employees of the Company or any of its Subsidiaries Affiliates ("“Employee Vested Options"”) shall be reduced by the amount of any taxes Taxes required to be withheld under applicable law Law with respect to such payments and amounts so withheld shall be paid by the Acquiror Exchange Agent to the Surviving Corporation Company for disbursement to the applicable taxing authority. The Surviving Corporation shall issue certificates for the Surviving Corporation Class B Common Stock to the holders of Management Rollover Shares upon surrender of the certificates representing Management Rollover Shares.
(c) Acquiror shall not be obligated to deliver any Cash Merger Consideration or Stock Merger Consideration with respect to any Holder until Acquiror shall have received appropriate certificates representing Company Shares ; and provided, further, that a Representation Letter (or, in the case of Options, a Holder Acknowledgment prior to Closing).
(d) Upon (i) payment by Acquiror to each Holder of such Holder's portion of the Merger Consideration (including any adjustment thereto pursuant otherwise payable to Section 1.8(c)), less the Initial Escrow Amount, (ii) delivery by the Exchange Agent each Pre-Closing Holder equal to the Holders product of the Acquiror Certificates, if any, (iii) payment by Acquiror of the Retired Company Debt, (iv) payment by Acquiror of the Employee Bonuses to the employees set forth on a schedule to be delivered by the Company to Acquiror prior to Closing, (v) payment by Acquiror to the Holder Representative of the estimated Holder Allocable Expenses pursuant to Section 1.5 hereof, (vi) delivery by Acquiror of the Initial Escrow Amount to multiplied by such holder’s Escrow Percentage shall be held in escrow in accordance with Section 3.4(d) and the Escrow Agent, and (vii) delivery by Agreement. Notwithstanding the Surviving Corporation of the Surviving Corporation Class B Common Stock, Acquiror shall be deemed to have satisfied its obligations to make payments in respect of the Merger Consideration.
(e) Pending surrender and exchange (orforegoing, in the case event that any Pre-Closing Holder of Options, upon delivery of a Holder Acknowledgment Common Shares delivers the Certificate(s) representing such Common Shares to the Acquiror Buyer prior to the Closing, as well as a letter of transmittal in the form described in subclause (x) above, Buyer shall pay the amount which such Pre-Closing Holder is entitled in consideration therefor to such Pre-Closing Holder at the Closing by wire transfer of immediately available funds, and the amount payable by Buyer to the Exchange Agent pursuant to Section 3.2(a) shall be reduced by the aggregate amount of any such payments by Buyer to all such Pre-Closing Holders. Pending such surrender and exchange of a Pre-Closing Holder’s Certificate(s), a holder's certificate or certificates for Company Shares, Management Rollover Shares or agreement with respect to Options (if such Holder has delivered a Holder Acknowledgment to the Acquiror prior to the Closing’s Certificate(s) shall be deemed for all purposes to evidence only such holder's entitlement ’s right to receive such receive, without interest, the portion of the Merger Consideration into which such Company Shares, Management Rollover Common Shares and/or Options shall have been converted by the Merger.
(fc) Notwithstanding anything to At the contrary in this AgreementClosing, no Holder (i) Buyer shall be entitled to receive fractional shares of Acquiror Common Stock and each Holder whose Company Shares and/or Options were converted pursuant to the Merger into pay a portion of the Stock Merger Consideration and who would otherwise have been entitled to receive a fraction of a share of Acquiror Common Stock shall be entitled to receive, in lieu of such fractional share, cash equal to the Escrow Amount to Xxxxx Fargo Bank, N.A., as escrow agent of the parties hereto (i) such fraction multiplied bythe “Escrow Agent”), to be held in escrow; provided that Buyer will promptly thereafter pay to the Escrow Agent any amounts by which the Escrow Amount increases due to any Dissenting Shares becoming Common Shares in accordance with Section 3.8, (ii) Buyer shall, or shall cause Merger Sub to, pay to the Average Trading Price. As promptly intended beneficiaries thereof (as practicable after the determination of the amount of cash, if any, to be paid to holders of fractional interests identified in Acquiror Common Stock, Acquiror shall forward payments of such amounts to such holders of fractional interests subject to and in accordance with the terms hereof. No such Holder will be entitled to dividends, voting rights or any other shareholder rights in respect of any fractional share.
(g) In the event any certificate for Company Shares or Management Rollover Shares has been lost, stolen or destroyed, upon the making of an affidavit of that fact writing by the Person claiming such certificate Company to be lost, stolen or destroyed, and providing for appropriate indemnification to Acquiror and Exchange Agent reasonably satisfactory to Acquiror, the Acquiror and Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate for Company Shares or Management Rollover Shares the Merger Consideration deliverable in respect thereof as determined in accordance with this Article I.
(h) From and after the Effective Time of the Merger, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock which were outstanding immediately Buyer prior to the Effective Time of Closing) the Merger. If, after Funded Debt under the Effective Time of Contracts set forth on Schedule 6.7 and (iii) Buyer shall pay the Merger, certificates representing capital stock of intended beneficiaries thereof (as identified in writing by the Company are presented to Buyer prior to the Surviving Corporation for any reason they shall be canceled as provided in this Article I.
(iClosing) None of Acquiror or the Surviving Corporation shall be liable to any holder of Estimated Unpaid Company Shares and/or Options for Merger Consideration delivered to a public official pursuant to any applicable abandoned property escheat or similar lawTransaction Expenses.
(j) Acquiror shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payments under the Code, or any provision of United States federal, state or local, or any foreign, tax law. To the extent that amounts are so withheld or paid over to or deposited with the relevant Governmental Authority by Acquiror, such amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made.
Appears in 1 contract
Payment and Exchange of Certificates. (a) Immediately prior to the Effective Time of the MergerTime, Acquiror Buyer shall instruct the transfer agent for the Acquiror Common Stock in pay to Fortis Advisors LLC (or its role designee), as the exchange paying agent (the "Exchange “Paying 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 Optionsfunds, an amount (the “Funding Amount”) equal to (i) the Merger Consideration (determined before giving effect to the adjustments provided for in Section 3.4), minus (ii) the product of (A) the number of Dissenting Shares and (B) the Cash Per Fully-Diluted Common Share (determined before giving effect to the adjustments provided for in Section 3.4, minus (iii) the Adjustment Escrow Amount; provided that Buyer shall promptly thereafter pay to the Paying Agent any amounts by which the Funding Amount increases due to any Dissenting Shares becoming Common Shares in accordance with Section 3.10.
(b) After the Effective Time, each Holder of an outstanding certificate or certificates for Common Shares or Preferred Shares (collectively, the “Certificates”), upon surrender of such Holder's Certificates and a letter of transmittal in the form attached hereto as Annex C (the “Letter of Transmittal”) to the Paying Agent and such other documentation as may be reasonably requested by the Paying Agent, Buyer or the Holder Representative, shall be entitled to receive from the Paying Agent in exchange therefor (subject to the adjustment provisions of Section 3.4) such portion of the Cash Merger Consideration into which such Holder's Company ’s Common Shares and/or Options Preferred Shares 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 transactions contemplated by such Holder's Applicable Percentage), which shall be deposited in escrow in accordance with Section 1.4 and the Escrow this 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 shall issue certificates for the Surviving Corporation Class B Common Stock to the holders of Management Rollover Shares upon surrender of the certificates representing Management Rollover Shares.
(c) Acquiror shall not be obligated to deliver any Cash Merger Consideration or Stock Merger Consideration with respect to any Holder until Acquiror shall have received appropriate certificates representing Company Shares and a Representation Letter (or, in the case of Options, a Holder Acknowledgment prior to Closing).
(d) Upon (i) payment by Acquiror to each Holder of such Holder's portion of the Merger Consideration (including any adjustment thereto pursuant otherwise payable to Section 1.8(c)), less the Initial Escrow Amount, (ii) delivery by the Exchange Agent to the Holders of the Acquiror Certificateseach Holder, if anyapplicable, (iii) payment by Acquiror of the Retired Company Debt, (iv) payment by Acquiror of the Employee Bonuses to the employees set forth on a schedule to be delivered by the Company to Acquiror prior to Closing, (v) payment by Acquiror to the Holder Representative of the estimated Holder Allocable Expenses pursuant to Section 1.5 hereof, (vi) delivery by Acquiror of the Initial Escrow Amount to the Escrow Agent, and (vii) delivery by the Surviving Corporation of the Surviving Corporation Class B Common Stock, Acquiror shall be deemed to have satisfied its obligations to make payments held in respect of the Merger Consideration.
(e) Pending surrender and exchange (or, in the case of Options, upon delivery of a Holder Acknowledgment to the Acquiror prior to the Closing), a holder's certificate or certificates for Company Shares, Management Rollover Shares or agreement with respect to Options (if such Holder has delivered a Holder Acknowledgment to the Acquiror prior to the Closing) shall be deemed for all purposes to evidence such holder's entitlement to receive such portion of the Merger Consideration into which such Company Shares, Management Rollover Shares and/or Options shall have been converted by the Merger.
(f) Notwithstanding anything to the contrary in this Agreement, no Holder shall be entitled to receive fractional shares of Acquiror Common Stock and each Holder whose Company Shares and/or Options were converted pursuant to the Merger into a portion of the Stock Merger Consideration and who would otherwise have been entitled to receive a fraction of a share of Acquiror Common Stock shall be entitled to receive, in lieu of such fractional share, cash equal to (i) such fraction multiplied by, (ii) the Average Trading Price. As promptly as practicable after the determination of the amount of cash, if any, to be paid to holders of fractional interests in Acquiror Common Stock, Acquiror shall forward payments of such amounts to such holders of fractional interests subject to and escrow in accordance with the terms hereof. No such Holder will be entitled to dividends, voting rights or any other shareholder rights in respect of any fractional share.
(g) In the event any certificate for Company Shares or Management Rollover Shares has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, and providing for appropriate indemnification to Acquiror and Exchange Agent reasonably satisfactory to Acquiror, the Acquiror and Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate for Company Shares or Management Rollover Shares the Merger Consideration deliverable in respect thereof as determined in accordance with this Article I.
(h) From and after the Effective Time of the Merger, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock which were outstanding immediately prior to the Effective Time of the Merger. If, after the Effective Time of the Merger, certificates representing capital stock of the Company are presented to the Surviving Corporation for any reason they shall be canceled as provided in this Article I.
(i) None of Acquiror or the Surviving Corporation shall be liable to any holder of Company Shares and/or Options for Merger Consideration delivered to a public official pursuant to any applicable abandoned property escheat or similar law.
(j) Acquiror shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payments under the Code, or any provision of United States federal, state or local, or any foreign, tax law. To the extent that amounts are so withheld or paid over to or deposited with the relevant Governmental Authority by Acquiror, such amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made.Sections 3.2(c),
Appears in 1 contract
Samples: Merger Agreement (Envision Healthcare Holdings, Inc.)
Payment and Exchange of Certificates. (a) Immediately prior to the Effective Time of the MergerTime, Acquiror Buyer shall instruct the transfer agent for the Acquiror Common Stock in its role as the pay to an exchange agent (the "“Exchange Agent"”) selected by the Holder Representative and reasonably acceptable to issue Buyer, by wire transfer of immediately available funds, an amount in cash (the “Funding Amount”) equal to (i) the Merger Consideration, plus (ii) in the event a 338(h)(10) Election is being made at the Closing, the Closing Date Section 338(h)(10) Election Taxes minus (iii) the product of (A) the number of Dissenting Shares and deliver (B) the Cash Per Common Share, minus (iv) the Escrow Amount; provided that Buyer will promptly thereafter pay to the Exchange Agent any amounts by which the Funding Amount increases due to any Dissenting Shares becoming Common Shares in accordance with Section 4.8.
(b) Prior to the Closing Date, the Companies shall mail to each Holder, promptly after such Pre‑Closing Holder has surrendered of record as of a recent date a letter of transmittal in the appropriate certificates representing Company Shares and a Representation Letter (orform attached hereto as Annex C, in the case of Holders the Stockholders (the “CMP Letter of OptionsTransmittal”), or Annex D, in the case of the Unitholders (the “FMFH Letter of Transmittal” and, together with the CMP Letter of Transmittal, each a “Letter of Transmittal”) (which shall include, among other things, an executed consent to the appointment of the Holder Representative as contemplated by Article XII). The Buyer shall, promptly after the Effective Time, deliver the applicable Letter(s) of Transmittal to any Person who was a Pre‑Closing Holder of record as of the Closing who did not receive such materials prior to the Closing, to the extent Buyer is made aware of those Persons. After the Effective Time, each Pre‑Closing Holder, upon delivery surrender to the Exchange Agent of a Holder Acknowledgment prior to Closing(i) an outstanding certificate or certificates for Common Shares (collectively, the “CMP Certificates”) and/or an outstanding certificate or certificates for Units, if any (collectively, the “FMFH Certificates” and, together with the CMP Certificates, the “Certificates”), as well applicable, (ii) the applicable Letter(s) of Transmittal and (iii) such other documentation as any other customary documentation may be reasonably requested by the Exchange Agent, Buyer or the Holder Representative, shall be entitled 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 receive from 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 in exchange therefor 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 and Section 338(h)(10) Election Taxes (if applicable) into which such Holder's Company holder’s Common Shares and/or Options Units, as applicable, 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 set forth on 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 AgreementAllocation Schedule; 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 shall issue certificates for the Surviving Corporation Class B Common Stock to the holders of Management Rollover Shares upon surrender of the certificates representing Management Rollover Shares.
(c) Acquiror shall not be obligated to deliver any Cash Merger Consideration or Stock Merger Consideration with respect to any Holder until Acquiror shall have received appropriate certificates representing Company Shares and a Representation Letter (or, in the case of Options, a Holder Acknowledgment prior to Closing).
(d) Upon (i) payment by Acquiror to each Holder of such Holder's portion of the Merger Consideration and Section 338(h)(10) Election Taxes (including any adjustment thereto pursuant if applicable) otherwise payable to Section 1.8(c)), each Pre‑Closing Holder equal to the sum of (x) the product of (A) the Escrow Amount (less the Initial portion of the Escrow AmountAmount attributable to the Estimated Section 338(h)(10) Election Taxes in the event a 338(h)(10) Election is not being made at the Closing) multiplied by (B) such holder’s Escrow Percentage plus (y) in the event a 338(h)(10) Election is not being made at the Closing, (iithe Estimated Section 338(h)(10) delivery Election ** Portions of this exhibit have been redacted in accordance with Item 601(b)(10) of Regulation S-K. The information is not material and would cause competitive harm to the registrant if publicly disclosed. “[***]” indicates that information has been redacted. Taxes attributable to such Pre-Closing Holder shall be held in escrow in accordance with the terms of the Escrow Agreement. Notwithstanding the foregoing, in the event that any Pre‑Closing Holder delivers the Certificate(s) representing such Common Shares and/or Units, as applicable, to Buyer at the Closing, Buyer shall pay the amount which such holder is entitled in consideration therefor directly to such holder at the Closing by wire transfer of immediately available funds and the Funding Amount payable to the Exchange Agent to the Holders of the Acquiror Certificates, if any, (iii) payment by Acquiror of the Retired Company Debt, (iv) payment by Acquiror of the Employee Bonuses to the employees set forth on a schedule to be delivered by the Company to Acquiror prior to Closing, (v) payment by Acquiror to the Holder Representative of the estimated Holder Allocable Expenses pursuant to Section 1.5 hereof, (vi) delivery by Acquiror of the Initial Escrow Amount to the Escrow Agent, and (vii) delivery by the Surviving Corporation of the Surviving Corporation Class B Common Stock, Acquiror shall be deemed to have satisfied its obligations to make payments in respect of the Merger Consideration.
(e) reduced by such amount. Pending such surrender and exchange (or, in the case of Options, upon delivery of a Holder Acknowledgment to the Acquiror prior to the ClosingPre‑Closing Holder’s Certificate(s), a holder's certificate or certificates for Company Shares, Management Rollover Shares or agreement with respect to Options (if such Holder has delivered a Holder Acknowledgment to the Acquiror prior to the Closing’s Certificate(s) shall be deemed for all purposes to evidence such holder's entitlement ’s right to receive such the portion of the Merger Consideration into which such Company Shares, Management Rollover Common Shares and/or Options Units, as applicable, shall have been converted by as a result of the Merger, as set forth on the Allocation Schedule.
(fc) Notwithstanding anything to At the contrary in this AgreementClosing, no Holder (i) Buyer shall be entitled to receive fractional shares of Acquiror Common Stock and each Holder whose Company Shares and/or Options were converted pursuant to the Merger into pay a portion of the Stock Merger Consideration and who would otherwise have been entitled to receive a fraction of a share of Acquiror Common Stock shall be entitled to receive, in lieu of such fractional share, cash equal to (i) such fraction multiplied bythe Escrow Amount to Fidelity National Title Insurance Company, (ii) the Average Trading Price. As promptly 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, as practicable after the determination escrow agent of the amount of cash, if anyparties hereto (the “Escrow Agent”), to be paid to holders of fractional interests held in Acquiror Common Stock, Acquiror shall forward payments of such amounts to such holders of fractional interests subject to and escrow in accordance with the terms hereof. No such Holder of the Escrow Agreement; provided that Buyer will be entitled promptly thereafter pay to dividends, voting rights or the Escrow Agent any other shareholder rights in respect of amounts by which the Escrow Amount increases due to any fractional share.
(g) In the event any certificate for Company Dissenting Shares or Management Rollover becoming Common Shares has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, and providing for appropriate indemnification to Acquiror and Exchange Agent reasonably satisfactory to Acquiror, the Acquiror and Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate for Company Shares or Management Rollover Shares the Merger Consideration deliverable in respect thereof as determined in accordance with this Article I.
Section 4.8, and (hii) From Buyer shall, or shall cause Merger Subs to, pay (A) to the intended beneficiaries thereof (as identified in the Pay‑Off Letter) any Closing Date CMP Debt and after the Effective Time of the Merger, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock which were outstanding immediately Closing Date FMFH Debt that has not been repaid in full prior to the Effective Time of Closing and (B) the Merger. IfHolder Representative Expenses, after the Effective Time of the Merger, certificates representing capital stock of the Company are presented to the Surviving Corporation for any reason they shall be canceled as provided set forth in this Article I.
(i) None of Acquiror or the Surviving Corporation shall be liable to any holder of Company Shares and/or Options for Merger Consideration delivered to a public official pursuant to any applicable abandoned property escheat or similar lawSection 4.5.
(j) Acquiror shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payments under the Code, or any provision of United States federal, state or local, or any foreign, tax law. To the extent that amounts are so withheld or paid over to or deposited with the relevant Governmental Authority by Acquiror, such amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made.
Appears in 1 contract
