Payment of Shares. (a) Prior to the mailing of the Proxy Statement (as herein defined) to the Company's shareholders, Parent shall appoint a bank or trust company reasonably satisfactory to the Company, and which shall be located in Columbus, Ohio, to act as disbursing agent (the "Disbursing Agent") for the payment of the Merger Consideration upon surrender of the Certificates and payment of the Adjusted Merger Consideration, including any Contingent Consideration, as provided herein. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in form and substance reasonably acceptable to the Company. Prior to the Effective Time, Parent shall deposit or cause to be deposited with the Disbursing Agent in trust for the benefit of the Company's shareholders cash in an aggregate amount necessary to make the payments pursuant to Section 1.04(b)(i) to holders of the Exchange Stock (such amounts being hereinafter referred to as the "Exchange Fund"). The Disbursing Agent shall invest the Exchange Fund, as the Surviving Corporation directs, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, or a combination thereof, provided that, in any such case and subject to the obligation to effect payment of the Merger Consideration pursuant to Section 1.05(b), no such instrument shall have a maturity exceeding three months. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation. The Exchange Fund shall be used only as provided in this Agreement. (b) Concurrently with the mailing of the Proxy Statement to the Company's shareholders, the Company shall mail or cause to be mailed to each person who is a record holder of the Exchange Stock, a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent) and any other appropriate materials and instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration including, without limitation, a Notice of Election pursuant to Section 1.04(b)(ii) of this Agreement and written instructions regarding the completion and timely return of such Notice to the Disbursing Agent. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of such Certificate shall be paid promptly after the Effective Time in exchange therefor cash in an amount equal to the product of the number of shares of Common Stock represented by such Certificate multiplied by the Merger Consideration or Adjusted Merger Consideration, as the case may be, and each such Certificate shall be cancelled. No interest will be paid or accrue on the cash payable upon the surrender of the Certificates. If payment is to be made to a person other than the person in whose name the Certificate surrendered is registered, it shall be a condition of payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered in accordance with this Section 1.05, each Certificate (other than Certificates representing Controlling Shares) shall represent for all purposes only the right to receive the Merger Consideration or Adjusted Merger Consideration in cash multiplied by the number of shares of Company Common Stock evidenced by such Certificate without any interest thereon, and, for those Record Holders who have elected to receive the Adjusted Merger Consideration, the right to receive the Contingent Consideration if any is to be paid. (c) From and after the Effective Time, there shall be no registration of transfers of shares of the Common Stock which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of shares of the Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as otherwise provided in this Agreement or by applicable law. All cash paid upon the surrender of Certificates in accordance with this Article I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of the Common Stock previously represented by such Certificates. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be canceled and exchanged for cash as provided in this Article I. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed. (d) With respect to the Merger Consideration, at any time more than twelve months after the Effective Time, the Surviving Corporation shall be entitled to require the Disbursing Agent to deliver to it any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including, without limitation, all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of shares of the Common Stock shall look only to Parent (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates held by
Appears in 1 contract
Samples: Merger Agreement (Scioto Downs Inc)
Payment of Shares. (a) Prior to the mailing of the Proxy Statement (as herein defined) to the Company's shareholdersEffective Time, Parent shall appoint a bank or trust company reasonably satisfactory to the Company, and which shall be located in Columbus, Ohio, Company to act as disbursing agent (the "Disbursing Agent") for the payment of the Merger Consideration upon surrender of the Certificates and payment of the Adjusted Merger Consideration, including any Contingent Consideration, as provided hereinCertificates. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in form and substance reasonably acceptable to the Company. Prior At or prior to the Effective Time, Parent shall deposit or cause to be deposited with the Disbursing Agent in trust for the benefit of the Company's shareholders cash in an aggregate amount necessary to make the payments pursuant to Section 1.04(b)(i) 1.04 to holders of the Exchange Stock (such amounts being hereinafter referred to as the "Exchange Fund"). The Disbursing Agent shall invest the Exchange Fund, as the Surviving Corporation directs, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interestinterest or commercial paper obligations receiving the highest rating from either Moodx'x Xxxestors Service, Inc. or Standard & Poor's, or a combination thereof, provided that, in any such case and subject to the obligation to effect payment of the Merger Consideration pursuant to Section 1.05(b)case, no such instrument shall have a maturity exceeding three months. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation. The Exchange Fund shall be used only as provided in this Agreement.
(b) Concurrently with Promptly after the mailing of the Proxy Statement to the Company's shareholdersEffective Time, the Company Surviving Corporation shall cause the Disbursing Agent to mail or cause to be mailed to each person who is a record holder of the Exchange StockStock at the Effective Time, a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent) and any other appropriate materials and instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration including, without limitation, a Notice of Election pursuant to Section 1.04(b)(ii) of this Agreement and written instructions regarding the completion and timely return of such Notice to the Disbursing AgentConsideration. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of such Certificate shall be paid promptly after the Effective Time in exchange therefor cash in an amount equal to to, in the case of the Class A Stock, the product of the number of shares of Common Class A Stock represented by such Certificate multiplied by the Merger Consideration or Adjusted Merger Class A Consideration, as and, in the case may beof the Class B Stock, the product of the number of shares of Class B Stock represented by such Certificate multiplied by the Class B Consideration, and each such Certificate shall be cancelled. No interest will be paid or accrue on the cash payable upon the surrender of the Certificates. If payment is to be made to a person other than the person in whose name the Certificate surrendered is registered, it shall be a condition of payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered in accordance with this Section 1.05, each Certificate (other than Certificates representing Controlling Shares) shall represent for all purposes only the right to receive the Merger Consideration or Adjusted Merger Consideration in cash multiplied by the number of shares of Company Common Stock evidenced by such Certificate without any interest thereon, and, for those Record Holders who have elected to receive the Adjusted Merger Consideration, the right to receive the Contingent Consideration if any is to be paid.
(c) From and after the Effective Time, there shall be no registration of transfers of shares of the Common Stock which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of shares of the Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as otherwise provided in this Agreement or by applicable law. All cash paid upon the surrender of Certificates in accordance with this Article I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of the Common Stock previously represented by such Certificates. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be canceled and exchanged for cash as provided in this Article I. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(d) With respect to the Merger Consideration, at At any time more than twelve six months after the Effective Time, the Surviving Corporation shall be entitled to require the Disbursing Agent to deliver to it any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including, without limitation, all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of shares of the Common Stock shall look only to Parent (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates held byby them. If any Certificates shall not have been surrendered prior to five years after the Effective Time (or immediately prior to such time on which any payment in respect hereof would otherwise escheat or become the property of any governmental unit or agency), the payment in respect of such Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, none of Parent, the Company, the Surviving Corporation nor the Disbursing Agent shall be liable to any holder of the Common Stock for any Merger Consideration in respect of such Common Stock delivered to a public official pursuant to any abandoned property, escheat or other similar law.
Appears in 1 contract
Payment of Shares. (a) Prior to the mailing of the Proxy Statement (as herein defined) to the Company's shareholdersEffective Time, Parent Merger Corporation shall appoint a bank or bank, trust company or other entity, including without limitation, Mellon Investor Services, reasonably satisfactory to Merger Corporation and the Company, and which shall be located in Columbus, Ohio, Company to act as disbursing agent (the "Disbursing Agent") for the payment of the Merger Consideration upon surrender of the Certificates and payment of the Adjusted Merger Consideration, including any Contingent Consideration, as provided herein. Parent for in this Article I. Merger Corporation will enter into a disbursing agent agreement with the Disbursing AgentAgent ("Disbursing Agent Agreement"), in form and substance reasonably acceptable to Merger Corporation and the Company. Prior At or prior to the Effective Time, Parent Merger Corporation shall deposit or cause to be deposited with the Disbursing Agent in trust for the benefit of the Company's shareholders cash in an aggregate amount necessary to make the payments pursuant Cash Payment to Section 1.04(b)(i) to the holders of the Exchange Stock Converted Shares (such amounts amount being hereinafter referred to as the "Exchange Fund"). The Disbursing Agent shall be permitted to invest the Exchange Fund, as Fund only in the Surviving Corporation directs, in following: direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interestinterest or commercial paper obligations receiving the highest rating from either Moody's Investors Service, Inc. or Standard & Poor's, a division of Thx XxXxxw Hill Companies, or a combination thereofthereof (collectively, the "Approved Investments"); provided that, in any such case and subject to case, the obligation to effect payment of the Merger Consideration pursuant to Section 1.05(b), no such instrument Exchange Fund shall be invested in Approved Investments which have a maturity date not exceeding three monthsone (1) month and such instruments shall be immediately saleable without incurring penalties or fees (other than ordinary brokers' fees and commissions) for sales prior to the expiration of such maturity dates. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation. The Exchange Fund shall be used only as provided in this Agreement.
(b) Concurrently with Promptly (but no later than five (5) days) after the mailing of the Proxy Statement to the Company's shareholdersEffective Time, the Company Surviving Corporation shall cause the Disbursing Agent to mail or cause to be mailed to each person who is was a record holder as of the Exchange StockEffective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Converted Shares (the "Certificates"), a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent) and any other appropriate materials and instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration including, without limitation, a Notice of Election pursuant Cash Payment and the right to Section 1.04(b)(ii) of this Agreement and written instructions regarding receive the completion and timely return of such Notice to the Disbursing AgentPer Share Contingent Payment. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing AgentAgent (collectively, "Letter of Transmittal"), the holder of such Certificate shall be paid promptly after the Effective Time in exchange therefor cash in an amount equal to the product of the number of shares of Common Stock Converted Shares represented by such Certificate multiplied by the Merger Consideration or Adjusted Merger Consideration, as Cash Payment and the case may beholder shall receive the right to receive the Per Share Contingent Payment for each such Converted Share, and each such Certificate shall forthwith be cancelledcanceled. No interest will be paid or accrue on the cash payable upon the surrender of the CertificatesCash Payment. If payment of any portion of the Merger Consideration is to be made to a person other than the person in whose name the Certificate surrendered is registered, it shall be a condition of payment that that, to the satisfaction of the Surviving Corporation and the Disbursing Agent, (i) the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that (ii) the person requesting such payment pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered in accordance with this Section 1.051.5, each Certificate (other than Certificates representing Controlling Shares) shall represent for all purposes only the right to receive the Merger Consideration or Adjusted Merger Consideration Cash Payment in cash multiplied by the number of shares of Company Common Stock Converted Shares evidenced by such Certificate Certificate, and the Per Share Contingent Payment for each such Converted Share, without any interest thereon, and, for those Record Holders who have elected to receive the Adjusted Merger Consideration, the right to receive the Contingent Consideration if any is to be paid.
(c) From and after the Effective Time, there shall be no registration of transfers of shares of the Company Common Stock which were outstanding immediately prior to the Effective Time on the stock transfer books ledger of the Surviving Corporation. From and after the Effective Time, the holders of shares of the Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except as otherwise provided in this Agreement or by applicable law. All cash paid payments of Merger Consideration upon the surrender of Certificates in accordance with this Article I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of the Common Stock Converted Shares previously represented by such Certificates. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be canceled and exchanged for cash the Merger Consideration as provided in this Article I. At the close of business on the day of the Effective Time Time, the stock ledger of the Company shall be closed.
(d) With respect to Upon termination of the Merger Consideration, at any time more than twelve months after the Effective TimeDisbursing Agent Agreement, the Surviving Corporation shall be entitled to require the Disbursing Agent to deliver to it any funds which had been made available to proceeds remaining in the Disbursing Agent and not disbursed in exchange for Certificates Exchange Fund (including, without limitation, all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of shares of the Common Stock Converted Shares shall look only to Parent the Surviving Corporation (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration Cash Payment that may be payable, without interest, upon due surrender of the Certificates held byby them. If any Certificates shall not have been surrendered prior to five (5) years after the Effective Time (or, if earlier, immediately prior to such time on which any payment in respect hereof would otherwise escheat or become the property of any governmental unit or agency), the Cash Payment in respect of such Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, neither the Surviving Corporation, the Company, nor the Disbursing Agent shall be liable to any holder of a Converted Share for any Cash Payment in respect of such share delivered to a public official pursuant to any abandoned property, escheat or other similar law.
(e) If any holder of any Converted Shares as of the Effective Time reports to the Disbursing Agent that his or her failure to surrender Certificates representing any Converted Shares registered in his or her name at the Effective Time, according to the Company's stock ledger, is due to the theft, loss or destruction of such Certificate, upon Disbursing Agent's receipt from such stockholder of an affidavit of such theft, loss or destruction and a bond of indemnity, both in form and substance satisfactory to the Disbursing Agent and in compliance with any other reasonable requirements established by the Disbursing Agent, the Disbursing Agent shall effect payment to such stockholder as though the Certificate for the Converted Shares had been surrendered.
(f) The Surviving Corporation or the Disbursing Agent, as the case may be, may deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Converted Shares such amounts as the Surviving Corporation or the Disbursing Agent, as the case may be, may be required to deduct and withhold with respect to the making of any such payment under the Internal Revenue Code of 1986, as amended, or any provision of state, local, or foreign tax law, including without limitation withholdings required in connection with payments under this Section 1.5 and Section 1.9 below. To the extent withheld by the Surviving Corporation or the Disbursing Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holders of the Converted Shares in respect of which such deduction and withholding was made.
Appears in 1 contract
Payment of Shares. (a) Prior to the mailing of the Proxy ----------------- Statement (as herein defined) to the Company's shareholders, Parent shall appoint a bank or trust company reasonably satisfactory to the Company, and which shall be located in Columbus, Ohio, Company to act as disbursing agent (the "Disbursing Agent") for the payment of the Merger Consideration upon surrender of the Certificates and payment of the Adjusted Merger Consideration, including any Contingent Consideration, as provided hereinCertificates. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in form and substance reasonably acceptable to the Company. Prior to the Effective Time, Parent shall deposit or cause to be deposited with the Disbursing Agent in trust for the benefit of the Company's shareholders cash in an aggregate amount necessary to make the payments pursuant to Section 1.04(b)(i) 1.04 to holders of the Exchange Stock (such amounts being hereinafter referred to as the "Exchange Fund"). The Disbursing Agent shall invest the Exchange Fund, as the Surviving Corporation directs, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, or a combination thereof, provided that, in any such case and subject to the obligation to effect payment of the Merger Consideration pursuant to Section 1.05(b), no such instrument shall have a maturity exceeding three months. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation. The Exchange Fund shall be used only as provided in this Agreement.
(b) Concurrently with the mailing of the Proxy Statement to the Company's shareholders, the Company shall mail or cause to be mailed to each person who is a record holder of the Exchange Stock, a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent) and any other appropriate materials and instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration including, without limitation, a Notice of Election pursuant to Section 1.04(b)(ii) of this Agreement and written instructions regarding the completion and timely return of such Notice to the Disbursing AgentConsideration. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of such Certificate shall be paid promptly after the Effective Time in exchange therefor cash in an amount equal to to, in the case of the Class A Stock, the product of the number of shares of Common Class A Stock represented by such Certificate multiplied by the Merger Consideration or Adjusted Merger Class A Consideration, as and, in the case may beof the Class B Stock, the product of the number of shares of Class B Stock represented by such Certificate multiplied by the Class B Consideration, and each such Certificate shall be cancelled. No interest will be paid or accrue on the cash payable upon the surrender of the Certificates. If payment is to be made to a person other than the person in whose name the Certificate surrendered is registered, it shall be a condition of payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered in accordance with this Section 1.05, each Certificate (other than Certificates representing Controlling Shares) shall represent for all purposes only the right to receive the Merger Consideration or Adjusted Merger Consideration in cash multiplied by the number of shares of Company Common Stock stock evidenced by such Certificate without any interest thereon, and, for those Record Holders who have elected to receive the Adjusted Merger Consideration, the right to receive the Contingent Consideration if any is to be paid.
(c) From and after the Effective Time, there shall be no registration of transfers of shares of the Common Stock which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of shares of the Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as otherwise provided in this Agreement or by applicable law. All cash paid upon the surrender of Certificates in accordance with this Article I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of the Common Stock previously represented by such Certificates. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be canceled and exchanged for cash as provided in this Article I. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(d) With respect to the Merger Consideration, at At any time more than twelve months after the Effective Time, the Surviving Corporation shall be entitled to require the Disbursing Agent to deliver to it any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including, without limitation, all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of shares of the Common Stock shall look only to Parent (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates held byby them. If any Certificates shall not have been surrendered immediately prior to the time on which any payment in respect hereof would otherwise escheat or become the property of any governmental unit or agency, the payment in respect of such Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, none of Parent, the Company, the Surviving Corporation nor the Disbursing Agent shall be liable to any holder of the Common Stock for any Merger Consideration in respect of such Common Stock delivered to a public official pursuant to any abandoned property, escheat or other similar law.
Appears in 1 contract
Samples: Merger Agreement (Raceland Truck Plaza & Casino LLC)
Payment of Shares. (a) Prior to the mailing of the Proxy Statement (as herein defined) to the Company's shareholders, Parent shall appoint a bank or trust company reasonably satisfactory to the Company, and which shall be located in Columbus, Ohio, Company to act as disbursing agent (the "Disbursing Agent") for the payment of the Merger Consideration upon surrender of the Certificates and payment of the Adjusted Merger Consideration, including any Contingent Consideration, as provided hereinCertificates. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in form and substance reasonably acceptable to the Company. Prior to the Effective Time, Parent shall deposit or cause to be deposited with the Disbursing Agent in trust for the benefit of the Company's shareholders cash in an aggregate amount necessary to make the payments pursuant to Section 1.04(b)(i) 1.04 to holders of the Exchange Stock (such amounts being hereinafter referred to as the "Exchange Fund"). The Disbursing Agent shall invest the Exchange Fund, as the Surviving Corporation directs, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, or a combination thereof, provided that, in any such case and subject to the obligation to effect payment of the Merger Consideration pursuant to Section 1.05(b), no such instrument shall have a maturity exceeding three months. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation. The Exchange Fund shall be used only as provided in this Agreement.
(b) Concurrently with the mailing of the Proxy Statement to the Company's shareholders, the Company shall mail or cause to be mailed to each person who is a record holder of the Exchange Stock, a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent) and any other appropriate materials and instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration including, without limitation, a Notice of Election pursuant to Section 1.04(b)(ii) of this Agreement and written instructions regarding the completion and timely return of such Notice to the Disbursing AgentConsideration. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of such Certificate shall be paid promptly after the Effective Time in exchange therefor cash in an amount equal to to, in the case of the Class A Stock, the product of the number of shares of Common Class A Stock represented by such Certificate multiplied by the Merger Consideration or Adjusted Merger Class A Consideration, as and, in the case may beof the Class B Stock, the product of the number of shares of Class B Stock represented by such Certificate multiplied by the Class B Consideration, and each such Certificate shall be cancelled. No interest will be paid or accrue on the cash payable upon the surrender of the Certificates. If payment is to be made to a person other than the person in whose name the Certificate surrendered is registered, it shall be a condition of payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered in accordance with this Section 1.05, each Certificate (other than Certificates representing Controlling Shares) shall represent for all purposes only the right to receive the Merger Consideration or Adjusted Merger Consideration in cash multiplied by the number of shares of Company Common Stock stock evidenced by such Certificate without any interest thereon, and, for those Record Holders who have elected to receive the Adjusted Merger Consideration, the right to receive the Contingent Consideration if any is to be paid.
(c) From and after the Effective Time, there shall be no registration of transfers of shares of the Common Stock which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of shares of the Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as otherwise provided in this Agreement or by applicable law. All cash paid upon the surrender of Certificates in accordance with this Article I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of the Common Stock previously represented by such Certificates. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be canceled and exchanged for cash as provided in this Article I. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(d) With respect to the Merger Consideration, at At any time more than twelve months after the Effective Time, the Surviving Corporation shall be entitled to require the Disbursing Agent to deliver to it any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including, without limitation, all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of shares of the Common Stock shall look only to Parent (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates held byby them. If any Certificates shall not have been surrendered immediately prior to the time on which any payment in respect hereof would otherwise escheat or become the property of any governmental unit or agency, the payment in respect of such Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, none of Parent, the Company, the Surviving Corporation nor the Disbursing Agent shall be liable to any holder of the Common Stock for any Merger Consideration in respect of such Common Stock delivered to a public official pursuant to any abandoned property, escheat or other similar law.
Appears in 1 contract
Payment of Shares. (a) Prior to the mailing of the Proxy Statement (as herein defined) to the Company's shareholders, Parent shall appoint a bank or trust company reasonably satisfactory to the Company, and which shall be located in Columbus, Ohio, to act as disbursing agent (the "Disbursing Agent") for the payment of the Merger Consideration upon surrender of the Certificates and payment of the Adjusted Merger Consideration, including any Contingent Consideration, as provided herein. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in form and substance reasonably acceptable to the Company. Prior to the Effective Time, Parent shall deposit or cause to be deposited with the Disbursing Agent in trust for the benefit of the Company's shareholders cash in an aggregate amount necessary to make the payments pursuant to Section 1.04(b)(i) to holders of the Exchange Stock (such amounts being hereinafter referred to as the "Exchange Fund"). The Disbursing Agent shall invest the Exchange Fund, as the Surviving Corporation directs, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, or a combination thereof, provided that, in any such case and subject to the obligation to effect payment of the Merger Consideration pursuant to Section 1.05(b), no such instrument shall have a maturity exceeding three months. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation. The Exchange Fund shall be used only as provided in this Agreement.
(b) Concurrently with the mailing of the Proxy Statement to the Company's shareholders, the Company shall mail or cause to be mailed to each person who is a record holder of the Exchange Stock, a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent) and any other appropriate materials and instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration including, without limitation, a Notice of Election pursuant to Section 1.04(b)(ii) of this Agreement and written instructions regarding the completion and timely return of such Notice to the Disbursing Agent. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of such Certificate shall be paid promptly after the Effective Time in exchange therefor cash in an amount equal to the product of the number of shares of Common Stock represented by such Certificate multiplied by the Merger Consideration or Adjusted Merger Consideration, as the case may be, and each such Certificate shall be cancelled. No interest will be paid or accrue on the cash payable upon the surrender of the Certificates. If payment is to be made to a person other than the person in whose name the Certificate surrendered is registered, it shall be a condition of payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered in accordance with this Section 1.05, each Certificate (other than Certificates representing Controlling Shares) shall represent for all purposes only the right to receive the Merger Consideration or Adjusted Merger Consideration in cash multiplied by the number of shares of Company Common Stock evidenced by such Certificate without any interest thereon, and, for those Record Holders who have elected to receive the Adjusted Merger Consideration, the right to receive the Contingent Consideration if any is to be paid.
(c) From and after the Effective Time, there shall be no registration of transfers of shares of the Common Stock which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of shares of the Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as otherwise provided in this Agreement or by applicable law. All cash paid upon the surrender of Certificates in accordance with this Article I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of the Common Stock previously represented by such Certificates. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be canceled and exchanged for cash as provided in this Article I. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(d) With respect to the Merger Consideration, at any time more than twelve months after the Effective Time, the Surviving Corporation shall be entitled to require the Disbursing Agent to deliver to it any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including, without limitation, all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of shares of the Common Stock shall look only to Parent (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates held byby them. If any Certificates shall not have been surrendered immediately prior to the time on which any payment in respect hereof would otherwise escheat or become the property of any governmental unit or agency, the payment in respect of such Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, none of Parent, the Company, the Surviving Corporation nor the Disbursing Agent shall be liable to any holder of the Common Stock for any Merger Consideration in respect of such Common Stock delivered to a public official pursuant to any abandoned property, escheat or other similar law. With respect to the Contingent Consideration for Record Holders who have elected to receive the Adjusted Merger Consideration, the Surviving Corporation shall pay such amounts to the Disbursing Agent to the extent and as shall be required by this Agreement and the President of the Surviving Corporation shall certify annually to the Disbursing Agent in writing that each such amount is the proper amount owed by it as Contingent Consideration under the terms of this Agreement. Upon each receipt of such amount by the Disbursing Agent, the Surviving Corporation shall mail or cause to be mailed to each person who was a record holder of the Company's stock on the record date set forth in the Proxy Statement ("Record Holder") with respect to the transactions contemplated hereby (the "Record Date") a letter of transmittal which shall specify all appropriate materials and instructions for use in effecting delivery of the Contingent Consideration to such holders.
(e) To the extent required by applicable law, delivery of the Contingent Consideration shall be effected by a Trustee under the terms of an Indenture to be entered into by Parent and Merger Subsidiary and a Trustee with appropriate credentials that are substantially the same as other Trustees involved in transactions that are similar to the transactions contemplated by this Agreement. Concurrently with the mailing of the Proxy Statement to the Company's shareholders, five days prior written notice of which shall be given to Parent by the Company, Parent shall mail or cause to be mailed to each person who is a record holder of the Company's Common Stock a summary of the terms of any such Indenture and any related prospectus that may be required to be delivered by the Parent to the Company's shareholders with respect to the Contingent Consideration under applicable securities law. Parent shall file a Registration Statement on Form S-4, and effect such other filings, to the extent required by applicable securities laws and pursuant to the terms of Section 5.12 hereof.
Appears in 1 contract
Payment of Shares. (a) Prior to the mailing of the Proxy ------------------- Statement (as herein defined) to the Company's shareholders, Parent shall appoint a bank or trust company reasonably satisfactory to the Company, and which shall be located in Columbus, Ohio, Company to act as disbursing agent (the "Disbursing Agent") for the payment of the Merger Consideration upon surrender of the Certificates and payment of the Adjusted Merger Consideration, including any Contingent Consideration, as provided hereinCertificates. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in form and substance reasonably acceptable to the Company. Prior to the Effective Time, Parent shall deposit or cause to be deposited with the Disbursing Agent in trust for the benefit of the Company's shareholders cash in an aggregate amount necessary to make the payments pursuant to Section 1.04(b)(i) 1.04 to holders of the Exchange Stock (such amounts being hereinafter referred to as the "Exchange Fund"). The Disbursing Agent shall invest the Exchange Fund, as the Surviving Corporation directs, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, or a combination thereof, provided that, in any such case and subject to the obligation to effect payment of the Merger Consideration pursuant to Section 1.05(b), no such instrument shall have a maturity exceeding three months. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation. The Exchange Fund shall be used only as provided in this Agreement.
(b) Concurrently with the mailing of the Proxy Statement to the Company's shareholders, the Company shall mail or cause to be mailed to each person who is a record holder of the Exchange Stock, a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent) and any other appropriate materials and instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration including, without limitation, a Notice of Election pursuant to Section 1.04(b)(ii) of this Agreement and written instructions regarding the completion and timely return of such Notice to the Disbursing AgentConsideration. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of such Certificate shall be paid promptly after the Effective Time in exchange therefor cash in an amount equal to to, in the case of the Class A Stock, the product of the number of shares of Common Class A Stock represented by such Certificate multiplied by the Merger Consideration or Adjusted Merger Class A Consideration, as and, in the case may beof the Class B Stock, the product of the number of shares of Class B Stock represented by such Certificate multiplied by the Class B Consideration, and each such Certificate shall be cancelled. No interest will be paid or accrue on the cash payable upon the surrender of the Certificates. If payment is to be made to a person other than the person in whose name the Certificate surrendered is registered, it shall be a condition of payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered in accordance with this Section 1.05, each Certificate (other than Certificates representing Controlling Shares) shall represent for all purposes only the right to receive the Merger Consideration or Adjusted Merger Consideration in cash multiplied by the number of shares of Company Common Stock stock evidenced by such Certificate without any interest thereon, and, for those Record Holders who have elected to receive the Adjusted Merger Consideration, the right to receive the Contingent Consideration if any is to be paid.
(c) From and after the Effective Time, there shall be no registration of transfers of shares of the Common Stock which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of shares of the Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as otherwise provided in this Agreement or by applicable law. All cash paid upon the surrender of Certificates in accordance with this Article I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of the Common Stock previously represented by such Certificates. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be canceled and exchanged for cash as provided in this Article I. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(d) With respect to the Merger Consideration, at At any time more than twelve months after the Effective Time, the Surviving Corporation shall be entitled to require the Disbursing Agent to deliver to it any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including, without limitation, all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of shares of the Common Stock shall look only to Parent (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates held byby them. If any Certificates shall not have been surrendered immediately prior to the time on which any payment in respect hereof would otherwise escheat or become the property of any governmental unit or agency, the payment in respect of such Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, none of Parent, the Company, the Surviving Corporation nor the Disbursing Agent shall be liable to any holder of the Common Stock for any Merger Consideration in respect of such Common Stock delivered to a public official pursuant to any abandoned property, escheat or other similar law.
Appears in 1 contract
