Payment for Company Common Stock. (a) Prior to the Effective Time, (i) Parent shall appoint American Stock Transfer & Trust Co., LLC to act as paying agent with respect to the Merger (the “Paying Agent”), and (ii) Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash amounts sufficient to enable the Paying Agent to make payments pursuant to Section 3.5 to holders of Company Common Stock outstanding immediately prior to the Effective Time.
(b) Within two (2) Business Days after the Effective Time, Parent and the Surviving Corporation shall cause the Paying Agent to mail to each Person who was, immediately prior to the Effective Time, a holder of record of Company Common Stock described in Section 3.5 a form of letter of transmittal (mutually approved by Parent and the Company) and instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares previously representing such Company Common Stock in exchange for payment therefor. Parent shall ensure that, upon surrender to the Paying Agent of each such Company Stock Certificate or Book Entry Share (or affidavits of loss in lieu of the Company Stock Certificate pursuant to Section 3.12), together with a properly executed letter of transmittal, the holder of such Company Stock Certificate or Book Entry Share (or, under the circumstances described in Section 3.6(e), the transferee of the Company Common Stock previously represented by such Company Stock Certificate or Book Entry Share) shall promptly receive in exchange therefor the Merger Consideration for each share of Company Common Stock formerly represented by such Company Stock Certificate or Book Entry Share pursuant to Section 3.5. Exchange of any Book Entry Shares shall be effected in accordance with the Paying Agent’s customary procedures with respect to securities represented by book entry.
(c) On or after the first anniversary of the Effective Time, the Surviving Corporation shall be entitled to cause the Paying Agent to deliver to the Surviving Corporation any funds made available by Parent to the Paying Agent which have not been disbursed to holders of Company Stock Certificates or Book Entry Shares in accordance with this Section 3.6, and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation with respect to the cash amounts payable upon surrender of their Company Stock Certificates or Book Entry Shares. Neither the Paying Agent nor the Surviving Corporation shall be liable to any holder ...
Payment for Company Common Stock. On the terms of and subject to the conditions set forth in this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, all shares of Company Common Stock that are validly tendered and not validly withdrawn pursuant to the Offer promptly (within the meaning of Section 14e-1(c) promulgated under the Exchange Act) after the expiration of the Offer (as it may be extended in accordance with Section 1.1(e)(ii)) (or, at Parent’s election, concurrently with the expiration of the Offer if all conditions to the Offer have been satisfied or waived) (such time of acceptance, the “Acceptance Time”). Without limiting the generality of the foregoing, Parent shall provide or cause to be provided to Purchaser on a timely basis the funds and shares of Parent Common Stock necessary to pay for any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the Offer. The consideration in the Offer payable in respect of each share of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the holder thereof in shares of Parent Common Stock (and cash in lieu of fractional shares of Parent Common Stock, if any), without interest and subject to reduction for any applicable withholding Taxes payable in respect thereof.
Payment for Company Common Stock. In-the-Money Options and In-the-Money Warrants.
(a) Prior to the Effective Time, Parent shall appoint a commercial bank or trust company reasonably acceptable to the Company to act as exchange and paying agent, registrar and transfer agent (the “Agent”) for the purpose of (i) exchanging certificates representing, immediately prior to the Effective Time, Company Common Stock for the applicable portion of the Merger Consideration, (ii) making payment of the aggregate In-the-Money Option Consideration in exchange for the cancellation of all In-the-Money Options and (iii) making payment of the aggregate In-the-Money Warrant Consideration in exchange for termination of all In-the-Money Warrants. Within two business days after the Effective Time, Parent shall deposit, or cause to be deposited, in trust with the Agent for the benefit of the holders of shares of Company Common Stock, In-the-Money Options and In-the-Money Warrants, cash in an aggregate amount equal to the Merger Consideration multiplied by the number of shares of Company Common Stock outstanding, plus the aggregate amount of In-the-Money Option Consideration, plus the aggregate amount of In-the-Money Warrant Consideration (such amount being hereinafter referred to as the “Payment Fund”). For purposes of determining the aggregate amount of cash to be deposited by Parent pursuant to this Section 00, Parent shall assume that no holder of shares of Company Common Stock will perfect their right to appraisal or demand purchase of their shares of Company Common Stock under Delaware Law or California Law, respectively. The Agent shall, pursuant to instructions provided by Parent, make the payments provided for in Section 1.7, 1.8 and 1.9 of this Agreement out of the Payment Fund (it being understood that any and all interest earned on funds made available to the Agent pursuant to this Agreement shall be turned over to the party depositing such funds with the Agent). The Payment Fund shall not be used for any other purpose except as provided in this Agreement.
(b) Promptly after the Effective Time, Parent or the Surviving Corporation shall cause the Agent to mail to each holder of record of a certificate or certificates (“Certificates”) that immediately prior to the Effective Time represented outstanding shares of Company Common Stock that were converted into the right to receive a portion of the Merger Consideration under Section 1.7 and to each holder of Dissenting Shares (i) a notice of the effectiveness...
Payment for Company Common Stock. Subject only to the satisfaction or waiver of the Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) promptly after (and no later than the first (1st) Business Day after) the Expiration Date accept for payment all shares of Company Common Stock that are validly tendered and not validly withdrawn pursuant to the Offer (the time of such acceptance the “Acceptance Time”) and promptly after the Acceptance Time pay for such shares (and in any event no later than the third (3rd) Business Day after the Acceptance Time pay for substantially all such shares); provided, however, that without the prior written consent of the Company (in its sole discretion), Merger Sub shall not accept for payment or pay for any shares of Company Common Stock if, as a result, Merger Sub would acquire less than the number of shares of Company Common Stock necessary to satisfy the Minimum Condition. Without limiting the generality of the foregoing or of Section 7.13, Parent shall provide or cause to be provided to Merger Sub on a timely basis all of the funds necessary to pay for any and all shares of Company Common Stock that Merger Sub becomes obligated to accept in the Offer and to purchase pursuant to the Offer and this Agreement, and shall cause Merger Sub to perform all of Merger Sub’s obligations under this Agreement. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be paid to the holder thereof in cash, without interest, and net of applicable withholding of Taxes as provided in Section 3.02(g).
Payment for Company Common Stock. (a) Prior to the Effective Time, Parent shall enter into a customary paying agent agreement with a nationally recognized bank or trust company designated by Parent and reasonably acceptable to the Company (such acceptance not to be unreasonably conditioned, withheld or delayed) to act as payment agent for the stockholders of the Company Common Stock in connection with the Merger (the “Paying Agent”) and to receive the Merger Consideration in accordance with the terms of this Agreement. At or immediately prior to the Effective Time on the Closing Date, Parent shall deposit, or cause to be deposited, with the Paying Agent cash in an aggregate amount that is sufficient to provide all funds necessary for the Paying Agent to pay the aggregate Upfront Per Share Merger Consideration payable in respect of Company Common Stock in accordance with this Article II (together, the “Payment Fund”). The Paying Agent shall deliver the aggregate Upfront Per Share Merger Consideration to be paid pursuant to Section 2.5 out of the Payment Fund in accordance with this Section 2.8. Except as provided in Section 2.8(g), the Payment Fund shall not be used for any other purpose.
Payment for Company Common Stock. On the terms and subject to conditions set forth in this Agreement and the Offer, Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment and pay for all shares of Company Common Stock that are validly tendered and not withdrawn pursuant to the Offer promptly (within the meaning of Section 14e-1(c) under the Exchange Act) after the Expiration Date of the Offer. Without limiting the generality of the foregoing, Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Payment for Company Common Stock. Merger Sub shall have accepted for payment, or caused to be accepted for payment, and paid for all shares of Company Common Stock validly tendered and not withdrawn in the Offer (provided that the purchase of Company Common Stock pursuant to the Offer shall not be a condition to the obligations of Parent or Merger Sub if Merger Sub fails to accept for payment and pay for Common Stock pursuant to the Offer in violation of this Agreement or the Offer).
Payment for Company Common Stock. (a) At the Closing, Acquisition Sub will deliver to each Shareholder such Shareholders' pro rata share of the Initial Merger Consideration as set forth on SCHEDULE 1.6 hereto. Notwithstanding the foregoing, at the Closing, 10% of the Initial Merger Consideration shall be payable to the Escrow Agent (as that term is defined in the Escrow Agreement) pursuant to an escrow agreement being executed and delivered by the Parties simultaneously with the execution and delivery of this Agreement (the "ESCROW AGREEMENT").
(b) On July 15, 2001 SAGE will deliver or cause to be delivered to each Shareholder such Shareholders' pro rata share of the First Earn-Out Shares (as defined in Section 1.6(d))
(c) On January 15, 2002, SAGE will deliver or cause to be delivered to each Shareholder such Shareholders' remaining pro rata share of the Remaining Earn-Out Shares (as defined in Section 1.6(e)). In addition, SAGE will deliver or cause to be delivered to each Shareholder such Shareholders' pro rata portion of the Bonus Shares (as defined in Section 1.6(f)), if any.
(d) The number of Earn-Out Shares to be collectively delivered to the Shareholders pursuant to Section 1.6(b) hereof (the "FIRST EARN-OUT SHARES") shall be calculated by dividing (i) the Net Revenue of the Surviving Corporation earned for the six month period commencing with the Closing Date and ending June 30, 2001 by (ii) the Fair Market Value of the SAGE Common Stock as such date, provided, however, that in no event shall the collective value of the Earn-Out Shares delivered pursuant to Section 1.6(b) exceed $500,000. For purposes of this Agreement, "NET REVENUE" shall mean gross sales minus returns and allowances, discounts, rebates, price concessions, sales promotions and miscellaneous deductions and write-offs for uncollectible accounts (including but not limited to accounts existing as of the Closing Date), and "FAIR MARKET VALUE" shall mean the average of the closing bid and asked prices of the SAGE Common Stock for the five trading days immediately preceding the determination of Fair Market Value.
Payment for Company Common Stock. In-the-Money Options and In-the-Money Warrants......................................... 12 2.11 Taking of Necessary Action; Further Action.................... 15 2.12
Payment for Company Common Stock. (a) PAYING AGENT. At or prior to the Closing, Parent will cause to be deposited with a bank or trust company designated by Parent and having a capital surplus of at least $1.0 billion (the "PAYING AGENT"), for the benefit of the holders of Company Shares to be converted in accordance with Section 2.1(a), for payment in accordance with this ARTICLE II through the Paying Agent, immediately available funds in an aggregate amount necessary to make the payments pursuant to SECTION 2.1(A) (such funds, the "PAYMENT FUND").
