Common use of Payments; Payment for Shares; Lost Certificates Clause in Contracts

Payments; Payment for Shares; Lost Certificates. (i) Immediately following the Effective Time, DGI shall deposit, or shall cause to be deposited, with M&T Bank, for the benefit of the Shareholders and for exchange and payment pursuant to this Section 2 through the Paying Agent, cash in an amount equal to the Preliminary Merger Consideration (the “Payment Fund”). Upon the making of such payment to the Paying Agent, DGI, Merger Sub and the Surviving Corporation shall thereafter have no further liability to any Shareholder for payment for any of the Shares, except for the payment of the Excess Amount, if applicable, or as otherwise set forth in this Agreement. The Paying Agent shall, pursuant to irrevocable written instructions executed by WBM, deliver out of the Payment Fund all amounts received by the Paying Agent for the account of the Shareholders, except to the extent paid into the Purchase Price Escrow Amount. The Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Shareholder such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, and the rules and regulations promulgated thereunder or any provision of any state, local or foreign tax Law. To the extent such amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect to which such deduction and withholding were made. (ii) At or prior to the Effective Time, [a] each Shareholder who held at the Effective Time an outstanding certificate or certificates that represented outstanding Shares (the “Certificates”) shall surrender such Certificates to the Paying Agent, together with a completed and duly executed letter of transmittal (a “Letter of Transmittal”), [b] upon such surrender of a Certificate and delivery of a duly completed and executed Letter of Transmittal, the holder of the Certificate will be entitled to receive an amount equal to [i] the number of Shares represented by such Certificate, multiplied by [ii] the Per Share Merger Consideration, payable promptly following the Effective Time, to an account designated in writing by such Shareholder, [c] the Paying Agent shall promptly pay such amounts to such holder and [d] the Surviving Corporation shall cancel the Certificates so surrendered. No interest will be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. Subject to Section 2(c)(v), under no circumstances will any holder of a Certificate be entitled to receive any part of the Merger Consideration until such holder shall have surrendered such Certificate and shall have duly executed the Letter of Transmittal and delivered such Letter of Transmittal to the Paying Agent. Until surrendered and exchanged for shares of the Surviving Corporation, no Shareholder shall be entitled to receive any dividends or other distributions declared and paid by the Surviving Corporation. (iii) As described in Section 2(a)(vii), within five Business Days of the determination of the Final Closing Balance Sheet and the Final Merger Consideration, DGI shall deposit, or shall cause to be deposited, with the Paying Agent cash in an amount equal to the Excess Amount, if there is an Excess Amount. In accordance with the applicable terms of Section 2(c)(ii), as soon as practicable thereafter, the Paying Agent shall distribute the Excess Amount to the Shareholders in proportion to the Merger Consideration allocable to each Shareholder. (iv) If payment is to be made to a Person other than the Person in whose name a surrendered Certificate is registered, the Certificate must be properly endorsed or otherwise in proper form for transfer and the Person requesting such payment must agree to pay any applicable transfer or other taxes or establish to the reasonable satisfaction of DGI and the Surviving Corporation that such tax has been paid or is not applicable. (v) If any Certificate has been lost, stolen or destroyed, the Paying Agent will issue the applicable portion of the Merger Consideration deliverable in respect thereof upon receipt of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed. After the Effective Time, until surrendered in accordance with these provisions, each Certificate shall represent only the right to receive the applicable portion of the Merger Consideration as set forth in this Agreement. (vi) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of the Shares which were outstanding immediately prior to the Effective Time. Certificates presented to the Surviving Corporation after the Effective Time shall be cancelled. (vii) Any portion of the Payment Fund that remains undistributed to the Shareholders for one year after the Effective Time shall be delivered to DGI upon demand, and any Shareholder who has not theretofore complied with this Section 2 shall thereafter look only to DGI for payment of such Shareholder’s claim to any part of the Merger Consideration. None of DGI, Merger Sub, WBM or the Surviving Corporation shall be liable to any Person in respect of any Merger Consideration delivered to a public office pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates representing outstanding Shares shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such Certificate would otherwise escheat to or become the property of any Governmental Authority, any such Merger Consideration in respect of such Certificate shall, at such time and the extent permitted by applicable Law, become the property of DGI, as the agent of those Shareholders that have failed to surrender their Certificates, free and clear of all claims of interest of any Person previously entitled thereto.

Payments; Payment for Shares; Lost Certificates. (i) Immediately following the Effective Time, DGI the Buyer shall deposit, or shall cause to be deposited, with M&T Banka bank or trust company organized under the laws of, and having an office in, the United States and jointly agreed upon in writing by the Buyer and the Representative (the “Paying Agent”), for the benefit of the Shareholders and for exchange and payment pursuant to this Section § 2 through the Paying Agent, cash in an amount equal to the Preliminary Merger Consideration (such funds being hereinafter referred to as the “Payment Fund”). Upon the making of such payment payments to the Paying Agent, DGIthe Buyer, the Merger Sub and the Surviving Corporation shall thereafter have no further liability to any Shareholder for payment for any of the Shares, except for the payment of the Excess Amount, if applicable, or as otherwise set forth in this Agreement. The Paying Agent shall, pursuant to irrevocable written instructions executed by WBMthe Representative, deliver out of the Payment Fund all amounts received by the Paying Agent for the account of the Shareholders, except to the extent paid into the Purchase Price Escrow AmountRepresentative’s Escrow. The Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Shareholder such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, and the rules and regulations promulgated thereunder thereunder, or any provision of any state, local or foreign tax Lawlaw. To the extent such amounts are so withheld, such withheld amounts shall be treated deemed for all purposes of this Agreement as having been paid to the holder of the Shares in respect to which such deduction and withholding were was made. On the Closing Date, the Representative shall provide the Paying Agent written instructions setting forth the amount of the Payment Fund that shall be paid by the Paying Agent into a separate escrow account for the benefit of the Representative to pay for expenses incurred by the Representative in connection with actions taken as the Representative (the “Representative’s Escrow”). The Representative’s Escrow shall include the Withholding Amount. (ii) At or prior to the Effective Time, [a] (A) each Shareholder who held at the Effective Time an outstanding certificate or certificates that represented outstanding Shares (the “Certificates”) shall surrender such Certificates to the Paying Agent, together with a completed and duly executed letter of transmittal that shall be in form and substance reasonably satisfactory to the Representative and the Buyer and, in any event, shall include a waiver of appraisal rights and a release (a “Letter of Transmittal”), [b] (B) upon such surrender of a Certificate and delivery of a duly completed and executed Letter of TransmittalTransmittal or at the Effective Time, whichever is later, the holder of the Certificate thereof will be entitled to receive an amount equal to [i] (1) the number of Shares represented by such Certificate, multiplied by [ii] (2) the Per Share Merger Consideration, payable promptly by wire transfer of immediately available funds on the Closing Date, immediately following the Effective Time, to an account designated in writing by such ShareholderShareholder no later than two (2) Business Days prior to the Closing Date, [c] (C) the Paying Agent shall promptly immediately pay such amounts to such holder and [d] the Surviving Corporation shall cancel (D) the Certificates so surrenderedsurrendered shall be cancelled; provided, however, in the case of any Shareholder with respect to which the Representative provides the Paying Agent with written instructions in accordance with the last two sentences of § 2(c)(i), the amount payable to such Shareholder shall be reduced by the Withholding Amount applicable to such Shareholder, which amount shall have been paid to the Representative’s Escrow pursuant to § 2(c)(i). No interest will be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. Subject to Section 2(c)(v§ 2(c)(iv), under no circumstances will any holder of a Certificate be entitled to receive any part of the Merger Consideration until such holder shall have surrendered such Certificate and shall have duly executed Certificate. On the Letter of Transmittal and delivered such Letter of Transmittal to Closing Date, the Paying Agent. Until surrendered Agent shall also pay by wire transfer of immediately available funds, the unpaid Transaction Expenses, pursuant to written instructions from the Representative and exchanged for shares of the Surviving Corporation, no Shareholder shall be entitled to receive any dividends or other distributions declared and paid by the Surviving Corporation. (iii) As described in Section 2(a)(vii), within five Business Days of the determination of the Final Closing Balance Sheet and the Final Merger Consideration, DGI shall deposit, or shall cause to be deposited, with the Paying Agent cash in an amount equal to the Excess Amount, if there is an Excess Amount. In accordance with the applicable terms of Section 2(c)(ii), as soon as practicable thereafter, the Paying Agent shall distribute the Excess Amount to the Shareholders in proportion to the Merger Consideration allocable to each Shareholder. (iv) If payment is to be made to a Person other than the Person in whose name a surrendered Certificate is registered, the Certificate must be properly endorsed or otherwise in proper form for transfer and the Person requesting such payment must agree to pay any applicable transfer or other taxes or establish to the reasonable satisfaction of DGI the Buyer and the Surviving Corporation that such tax has been paid or is not applicable. (viv) If any Certificate has been lost, stolen or destroyed, the Paying Agent Buyer will issue the applicable portion of the Merger Aggregate Consideration deliverable in respect thereof upon receipt of an a customary affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed. After the Effective Time, until surrendered in accordance with these provisions, each Certificate shall represent only the right to receive the applicable portion of the Merger Consideration as set forth in this Agreement. (viv) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of the Shares which were outstanding immediately prior to the Effective Time. Certificates presented to the Surviving Corporation after the Effective Time shall be cancelled. (viivi) Any portion of the Payment Fund that remains undistributed to the Shareholders for one year six months after the Effective Time shall be delivered to DGI the Buyer upon demand, and any Shareholder who has not theretofore complied with this Section §2 shall thereafter look only to DGI the Buyer for payment of such Shareholder’s claim to any part of the Merger Consideration. None of DGIthe Buyer, the Merger Sub, WBM Sub or the Surviving Corporation shall be liable to any Person in respect of any Merger Consideration delivered to a public office pursuant to any applicable abandoned property, escheat or similar Lawlaw. If any Certificates representing outstanding Shares shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such Certificate would otherwise escheat to or become the property of any Governmental Authoritygovernment authority, any such Merger Consideration in respect of such Certificate shall, at such time and the extent permitted by applicable Lawlaw, become the property of DGI, as the agent of those Shareholders that have failed to surrender their CertificatesSurviving Corporation, free and clear of all claims of interest of any Person person previously entitled thereto.

Payments; Payment for Shares; Lost Certificates. (ia) Immediately following the Effective Time, DGI Buyer shall depositdeliver to the Paying Agent, or shall cause to be deposited, with M&T Bankby wire transfer of immediately available funds, for the benefit of the Shareholders and for exchange and payment pursuant to this Section 2 4 through the Paying Agent, cash in an amount equal to the Preliminary Estimated Merger Consideration less the Holdback Amount (such funds being hereinafter referred to as the “Payment Fund”). Upon the making of such payment payments to the Paying Agent, DGIBuyer, Merger Sub and the Surviving Corporation shall thereafter have no further liability to any Shareholder for payment for any of the Shares, except for the with respect to Dissenting Shares, payment of the Excess AmountMerger Consideration Increase, if applicable, or as otherwise set forth in this Agreement. The Paying Agent shall, pursuant to irrevocable written instructions executed by WBMthe Shareholders’ Representative, deliver out of the Payment Fund all amounts received by the Paying Agent for the account of the Shareholders, except Shareholders (excluding such amount attributable to the extent paid into the Purchase Price Escrow AmountDissenting Shares). The Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Shareholder such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, and the rules and regulations promulgated thereunder thereunder, or any provision of any state, local or foreign tax Tax Law. To the extent such amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect to which such deduction and withholding were was made. In the event of Dissenting Shares, the holders of Dissenting Shares will not be entitled to payment of the Merger Consideration from the Paying Agent pursuant to this Section 4 and the applicable Per Share Merger Consideration which would have been payable with respect to such Dissenting Shares shall be returned by the Paying Agent to the Surviving Corporation for payment of the appraised value therefore, which payment shall be the responsibility of the Surviving Corporation. (iib) At or prior to the Effective Time, [a] (i) each Shareholder who held at the Effective Time an outstanding certificate or certificates that represented outstanding Shares (the “Certificates”) shall surrender such Certificates to the Paying Agent, together with a completed and duly executed letter of transmittal in the form attached as Exhibit B (a “Letter of Transmittal”), [b] (ii) upon such surrender of a Certificate and delivery of a duly completed and executed Letter of TransmittalTransmittal or at the Effective Time, whichever is later, the holder of the Certificate thereof will be entitled to receive from the Payment Fund an amount equal to [ia] the number of Shares represented by such Certificate, multiplied by [iib] the Per Share Merger Considerationamount determined under Section 4.01(a)(i), above, payable promptly by wire transfer of immediately available funds on the Closing Date, immediately following the Effective Time, to an account designated in writing by such ShareholderShareholder no later than two (2) Business Days prior to the Closing Date, [c] (iii) the Paying Agent shall promptly immediately pay such amounts to such holder holder, and [d] the Surviving Corporation shall cancel (iv) the Certificates so surrenderedsurrendered shall be cancelled. No interest will be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. Subject to Section 2(c)(v4(e), under no circumstances will any holder of a Certificate be entitled to receive any part of the Merger Consideration until such holder shall have surrendered such Certificate and shall have duly executed the Letter of Transmittal and delivered such Letter of Transmittal to the Paying AgentCertificate. Until surrendered and exchanged for shares of the Surviving Corporation, no Shareholder shall be entitled to receive any dividends or other distributions declared and paid by the Surviving Corporation. (iii) As described in Section 2(a)(vii3.04(d), within five Business Days of the determination of the Final Closing Balance Sheet and the Final Merger Consideration, DGI shall deposit, or shall cause to be deposited, with the Paying Agent cash in an amount equal to the Excess Amount, if there is an Excess Amount. In accordance with the applicable terms of Section 2(c)(ii), as soon as practicable thereafter, the Paying Agent shall distribute the Excess Amount to the Shareholders in proportion to the Merger Consideration allocable to each Shareholder. (iv) If payment is to be made to a Person other than the Person in whose name a surrendered Certificate is registered, the Certificate must be properly endorsed or otherwise in proper form for transfer and the Person requesting such payment must agree to pay any applicable transfer or other taxes or establish to the reasonable satisfaction of DGI and the Surviving Corporation that such tax has been paid or is not applicable. (v) If any Certificate has been lost, stolen or destroyed, the Paying Agent will issue the applicable portion of the Merger Consideration deliverable in respect thereof upon receipt of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed. After the Effective Time, until surrendered in accordance with these provisions, each Certificate shall represent only the right to receive the applicable portion of the Merger Consideration as set forth in this Agreement. (vi) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of the Shares which were outstanding immediately prior to the Effective Time. Certificates presented to the Surviving Corporation after the Effective Time shall be cancelled. (vii) Any portion of the Payment Fund that remains undistributed to the Shareholders for one year after the Effective Time shall be delivered to DGI upon demand, and any Shareholder who has not theretofore complied with this Section 2 shall thereafter look only to DGI for payment of such Shareholder’s claim to any part of the Merger Consideration. None of DGI, Merger Sub, WBM or the Surviving Corporation shall be liable to any Person in respect of any Merger Consideration delivered to a public office pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates representing outstanding Shares shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such Certificate would otherwise escheat to or become the property of any Governmental Authority, any such Merger Consideration in respect of such Certificate shall, at such time and the extent permitted by applicable Law, become the property of DGI, as the agent of those Shareholders that have failed to surrender their Certificates, free and clear of all claims of interest of any Person previously entitled thereto.to

Payments; Payment for Shares; Lost Certificates. (i) Immediately following the Effective TimeClosing Date, DGI shall deposit, or shall cause to be deposited, with M&T Bank, for the benefit of the Shareholders and for exchange and payment pursuant to this Section 2 through the Paying Agent, cash in an amount equal to the Preliminary Merger Consideration (the “Payment Fund”). Upon the making of such payment to the Paying Agent, DGI, Merger Sub and the Surviving Corporation shall thereafter have no further liability to any Shareholder for payment for any of the Shares, except for the payment of the Excess Amount, if applicable, or as otherwise set forth in this Agreement. The Paying Agent shall, pursuant to irrevocable written instructions executed by WBM, deliver out of the Payment Fund all amounts received by the Paying Agent for the account of the Shareholders, except to the extent paid into the Purchase Price Escrow Amount. The Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Shareholder such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, and the rules and regulations promulgated thereunder or any provision of any state, local or foreign tax Law. To the extent such amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect to which such deduction and withholding were made. (ii) At or prior to the Effective TimeClosing Date, [a] each Shareholder who held at the Effective Time Closing Date an outstanding certificate or certificates that represented outstanding Shares (the “Certificates”) shall surrender such Certificates to the Paying AgentMICO, together with a completed and duly executed letter of transmittal (a “Letter of Transmittal”), [b] upon such surrender of a Certificate and delivery of a duly completed and executed Letter of Transmittal, the holder of the Certificate will be entitled to receive an amount equal to [i] the number of Shares represented by such Certificate, multiplied by [ii] the Per Share Merger Consideration, payable promptly following the Effective TimeDate, to an account designated in writing by such Shareholder, [c] the Paying Agent shall promptly pay such amounts to such holder and [d] the Surviving Corporation shall cancel the Certificates so surrendered. No interest will be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. Subject to Section 2(c)(v), under no circumstances will any holder of a Certificate be entitled to receive any part of the Merger Consideration until such holder shall have surrendered such Certificate and shall have duly executed the Letter of Transmittal and delivered such Letter of Transmittal to the Paying AgentMICO. Until surrendered and exchanged for shares of the Surviving Corporation, no Shareholder shall be entitled to receive any dividends or other distributions declared and paid by the Surviving Corporation. (iii) As described in Section 2(a)(vii), within five Business Days of the determination of the Final Closing Balance Sheet and the Final Merger Consideration, DGI shall deposit, or shall cause to be deposited, with the Paying Agent cash in an amount equal to the Excess Amount, if there is an Excess Amount. In accordance with the applicable terms of Section 2(c)(ii), as soon as practicable thereafter, the Paying Agent shall distribute the Excess Amount to the Shareholders in proportion to the Merger Consideration allocable to each Shareholder. (iv) If payment is to be made to a Person other than the Person in whose name a surrendered Certificate is registered, the Certificate must be properly endorsed or otherwise in proper form for transfer and the Person requesting such payment must agree to pay any applicable transfer or other taxes or establish to the reasonable satisfaction of DGI and the Surviving Corporation that such tax has been paid or is not applicable. (v) If any Certificate has been lost, stolen or destroyed, the Paying Agent will issue the applicable portion of the Merger Consideration deliverable in respect thereof upon receipt of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed. After the Effective TimeClosing Date, until surrendered in accordance with these provisions, each Certificate shall represent only the right to receive the applicable portion of the Merger Consideration as set forth in this Agreement. (vi) After the Effective TimeClosing Date, there shall be no transfers on the stock transfer books of the Surviving Corporation of the Shares which were outstanding immediately prior to the Effective TimeClosing Date. Certificates presented to the Surviving Corporation after the Effective Time Closing Date shall be cancelled. (vii) Any portion of the Payment Fund that remains undistributed to the Shareholders for one year after the Effective Time Closing Date shall be delivered to DGI upon demand, and any Shareholder who has not theretofore complied with this Section 2 shall thereafter look only to DGI for payment of such Shareholder’s claim to any part of the Merger Consideration. None of DGI, Merger Sub, WBM or the Surviving Corporation shall be liable to any Person in respect of any Merger Consideration delivered to a public office pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates representing outstanding Shares shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such Certificate would otherwise escheat to or become the property of any Governmental Authority, any such Merger Consideration in respect of such Certificate shall, at such time and the extent permitted by applicable Law, become the property of DGI, as the agent of those Shareholders that have failed to surrender their Certificates, free and clear of all claims of interest of any Person previously entitled thereto.