Proration and Election Procedures. The Parties acknowledge that for United States income tax purposes it is intended that the Merger shall qualify as a reorganization under the provisions of Section 368(a) of the Code, and this Agreement is intended to be and is adopted as a plan of reorganization within the meaning of Section 368 of the Code. Consistent with that intent, notwithstanding any provision of this Agreement to the contrary, the aggregate Merger Consideration payable to all holders of CBI Common Stock shall include such number of shares of NewAlliance Common Stock as is necessary in order that the aggregate number of shares of CBI Common Stock exchanged through the Merger for shares of NewAlliance Common Stock is seventy percent (70%) of the aggregate of (i) the total number of shares of CBI Common Stock issued and outstanding and (ii) the total number of shares of CBI Common Stock subject to Options immediately prior to the Effective Time (the “Stock Conversion Number”). Subject to the Stock Conversion Number, holders of CBI Common Stock may elect to receive shares of NewAlliance Common Stock or the Cash Election Price in exchange for their shares of CBI Common Stock in accordance with the following procedures. 3.2.1 An election form (“Election Form”) will be sent by NewAlliance no later than fifteen (15) Business Days and no earlier than thirty (30) Business Days prior to the expected Effective Time (provided that it need not be sent until the approvals from the Bank Regulators as set forth in Section 8.3 have been obtained) to each holder of record of CBI Common Stock permitting such holder (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to elect to receive, subject to the pro-ration procedures described in Section 3.2.2, (i) all NewAlliance Common Stock with respect to each share of such holder’s CBI Common Stock, as provided herein (the “Stock Election Shares”); (ii) all cash with respect to each share of such holder’s CBI Common Stock, as provided herein (the “Cash Election Shares”) or (iii) a combination of Stock Merger Consideration consisting of 70% Stock Election Consideration and 30% Cash Election Consideration with respect to each share of such holder’s CBI Common Stock, as provided herein. Any shares of CBI Common Stock with respect to which the holder thereof shall not, as of the Election Deadline, have made such an election by submission to the Exchange Agent on an effective, properly completed Election Form (“Non-Election Shares”) shall be deemed to have elected the Cash Election Consideration and shall be converted into the Cash Election Price in accordance with Section 3.1.3, subject to the pro-ration procedures described in Section 3.2.2.
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Proration and Election Procedures. The Parties acknowledge that for United States income tax purposes it is intended that the Merger shall qualify as a reorganization under the provisions of Section 368(a) of the Code, and this Agreement is intended to be and is adopted as a plan of reorganization within the meaning of Section 368 of the Code. Consistent with that intent, notwithstanding any provision of this Agreement to the contrary, the aggregate Merger Consideration payable to all holders of CBI Common Stock shall include such number of shares of NewAlliance Common Stock as is necessary in order that the aggregate number of shares of CBI Common Stock exchanged through the Merger for shares of NewAlliance Common Stock is seventy percent (70%) of the aggregate of (i) the total number of shares of CBI Common Stock issued and outstanding and (ii) the total number of shares of CBI Common Stock subject to Options immediately prior to the Effective Time (the “"Stock Conversion Number”"). Subject to the Stock Conversion Number, holders of CBI Common Stock may elect to receive shares of NewAlliance Common Stock or the Cash Election Price in exchange for their shares of CBI Common Stock in accordance with the following procedures.
3.2.1 An election form (“"Election Form”") will be sent by NewAlliance no later than fifteen (15) Business Days and no earlier than thirty (30) Business Days prior to the expected Effective Time (provided that it need not be sent until the approvals from the Bank Regulators as set forth in Section 8.3 have been obtained) to each holder of record of CBI Common Stock permitting such holder (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to elect to receive, subject to the pro-ration procedures described in Section 3.2.2, (i) all NewAlliance Common Stock with respect to each share of such holder’s 's CBI Common Stock, as provided herein (the “"Stock Election Shares”"); (ii) all cash with respect to each share of such holder’s 's CBI Common Stock, as provided herein (the “"Cash Election Shares”") or (iii) a combination of Stock Merger Consideration consisting of 70% Stock Election Consideration and 30% Cash Election Consideration with respect to each share of such holder’s 's CBI Common Stock, as provided herein. Any shares of CBI Common Stock with respect to which the holder thereof shall not, as of the Election Deadline, have made such an election by submission to the Exchange Agent on an effective, properly completed Election Form (“"Non-Election Shares”") shall be deemed to have elected the Cash Election Consideration and shall be converted into the Cash Election Price in accordance with Section 3.1.3, subject to the pro-ration procedures described in Section 3.2.2.
3.2.2 The term "Election Deadline", as used below, shall mean 5:00 p.m., Eastern time, on the fifteenth (15th) Business Day following but not including the date of mailing of the Election Form or such other date as NewAlliance and CBI shall mutually agree upon, provided in any event, the Election Deadline shall be at or before the Effective Time. Any election to receive NewAlliance Common Stock or cash shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. Any Election Form may be revoked or changed by the person submitting such Election Form to the Exchange Agent by written notice to the Exchange Agent only if such notice is actually received, including by facsimile, by the Exchange Agent at or prior to the Election Deadline. The Certificate or Certificates representing CBI Common Stock relating to any revoked Election Form shall be promptly returned without charge to the person submitting the Election Form to the Exchange Agent. The Exchange Agent shall have discretion to determine when any election, modification or revocation is received and whether any such election, modification or revocation has been properly made. Within five (5) Business Days after the Election Deadline, the Exchange Agent shall calculate the allocation, if any, among holders of CBI Common Stock of rights to receive the Stock Election Price and the Cash Election Price as follows: If the number of Stock Election Shares does not equal the Stock Conversion Number, then the Stock Election Shares and the Cash Election Shares will be converted into the right to receive NewAlliance Common Stock and cash in the following manner:
(a) If the aggregate number of Stock Election Shares (the "Stock Election Number") exceeds the Stock Conversion Number, then all CBI Cash Election Shares and all Non-Election Shares of each holder thereof shall be converted into the right to receive the Cash Consideration, and Stock Election Shares of each holder thereof will be converted into the right to receive the Stock Consideration in respect of that number of Stock Election Shares equal to the product obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the numerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the remaining number of such holder's Stock Election Shares being converted into the right to receive the Cash Election Consideration; and
(b) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the "Shortfall Number"), then all Stock Election Shares shall be converted into the right to receive the Stock Consideration and the Non-Election Shares and Cash Election Shares shall be treated in the following manner:
(i) If the Shortfall Number is less than or equal to the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Election Consideration and the Non-Election Shares of each holder thereof shall be converted into the right to receive the Stock Consideration in respect of that number of Non-Election Shares equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder's Non-Election Shares being converted into the right to receive the Cash Election Consideration; or
(ii) If the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Election Consideration, and Cash Election Shares of each holder thereof shall be converted into the right to receive the Stock Election Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder's Cash Election Shares being converted into the right to receive the Cash Election Consideration.
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Proration and Election Procedures. The Parties acknowledge --------------------------------- that for United States federal income tax purposes it is intended that the Merger shall qualify as a reorganization under the provisions of Section 368(a) of the Code, and this Agreement is intended to be and is adopted as a plan of reorganization within the meaning of Section 368 of the Code. Consistent with that intent, notwithstanding any provision of this Agreement to the contrary, the aggregate Merger Consideration payable to all holders of CBI Westbank Common Stock shall include such number of shares of NewAlliance Common Stock as is necessary in order that the aggregate number of shares of CBI Westbank Common Stock exchanged through the Merger for shares of NewAlliance Common Stock is seventy fifty percent (7050%) of the aggregate of (i) the total number of shares of CBI Westbank Common Stock issued and outstanding and (ii) the total number of shares of CBI Common Stock subject to Options immediately prior to the Effective Time (the “"Stock Conversion Number”"). Subject to the Stock Conversion Number, holders of CBI Westbank Common Stock may elect to receive shares of NewAlliance Common Stock or the Cash Election Price in exchange for their shares of CBI Westbank Common Stock in accordance with the following procedures.
3.2.1 An election form (“"Election Form”") will be sent by NewAlliance no later than fifteen (15) Business Days and no earlier than thirty (30) Business Days prior to the expected Effective Time (provided that it need not be sent until the approvals from the Bank Regulators as set forth in Section 8.3 have been obtained) to each holder of record of CBI Westbank Common Stock permitting such holder (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to elect to receive, subject to the pro-ration procedures described in Section 3.2.2, (i) all NewAlliance Common Stock with respect to each share of such holder’s CBI 's Westbank Common Stock, as provided herein (the “"Stock Election Shares”"); (ii) all cash with respect to each share of such holder’s CBI 's Westbank Common Stock, as provided herein (the “"Cash Election Shares”") or (iii) a combination of Stock Merger Consideration consisting of 70% a mixture of Stock Election Consideration and 30% Cash Election Consideration with respect to each share of such holder’s CBI 's Westbank Common Stock, as provided herein. Any shares of CBI Westbank Common Stock with respect to which the holder thereof shall not, as of the Election Deadline, have made such an election by submission to the Exchange Agent on an effective, properly completed Election Form shall be deemed Non-Election Shares (“"Non-Election Shares”").
3.2.2 The term "Election Deadline", as used below, shall mean 5:00 p.m., Eastern time, on a date determined by NewAlliance, which date shall not be earlier than the fifteenth (15th) Business Day following but not including the date of mailing of the Election Form or such other date as NewAlliance and Westbank shall mutually agree upon, provided in any event, the Election Deadline shall be deemed at or before the Effective Time. Any election to receive NewAlliance Common Stock or cash shall have elected been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. Any Election Form may be revoked or changed by the Person submitting such Election Form to the Exchange Agent by written notice to the Exchange Agent only if such notice is actually received, including by facsimile, by the Exchange Agent at or prior to the Election Deadline. The Certificate or Certificates representing Westbank Common Stock relating to any revoked Election Form shall be promptly returned without charge to the Person submitting the Election Form to the Exchange Agent. The Exchange Agent shall have discretion to determine when any election, modification or revocation is received and whether any such election, modification or revocation has been properly made. The Exchange Agent shall promptly calculate the allocation, if any, among holders of Westbank Common Stock of rights to receive the Stock Election Price and the Cash Election Consideration Price as follows: If the number of Stock Election Shares does not equal the Stock Conversion Number, then the Stock Election Shares and shall the Cash Election Shares will be converted into the Cash Election Price right to receive NewAlliance Common Stock and cash in accordance with Section 3.1.3, subject to the pro-ration procedures described in Section 3.2.2.following manner:
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Samples: Merger Agreement (Westbank Corp)
Proration and Election Procedures. The Parties acknowledge that for United States federal income tax purposes it is intended that the Merger shall qualify as a reorganization under the provisions of Section 368(a) of the Code, and this Agreement is intended to be and is adopted as a plan of reorganization within the meaning of Section 368 of the Code. Consistent with that intent, notwithstanding any provision of this Agreement to the contrary, the aggregate Merger Consideration payable to all holders of CBI Westbank Common Stock shall include such number of shares of NewAlliance Common Stock as is necessary in order that the aggregate number of shares of CBI Westbank Common Stock exchanged through the Merger for shares of NewAlliance Common Stock is seventy fifty percent (7050%) of the aggregate of (i) the total number of shares of CBI Westbank Common Stock issued and outstanding and (ii) the total number of shares of CBI Common Stock subject to Options immediately prior to the Effective Time (the “"Stock Conversion Number”"). Subject to the Stock Conversion Number, holders of CBI Westbank Common Stock may elect to receive shares of NewAlliance Common Stock or the Cash Election Price in exchange for their shares of CBI Westbank Common Stock in accordance with the following procedures.
3.2.1 An election form (“"Election Form”") will be sent by NewAlliance no later than fifteen (15) Business Days and no earlier than thirty (30) Business Days prior to the expected Effective Time (provided that it need not be sent until the approvals from the Bank Regulators as set forth in Section 8.3 have been obtained) to each holder of record of CBI Westbank Common Stock permitting such holder (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to elect to receive, subject to the pro-ration procedures described in Section 3.2.2, (i) all NewAlliance Common Stock with respect to each share of such holder’s CBI 's Westbank Common Stock, as provided herein (the “"Stock Election Shares”"); (ii) all cash with respect to each share of such holder’s CBI 's Westbank Common Stock, as provided herein (the “"Cash Election Shares”") or (iii) a combination of Stock Merger Consideration consisting of 70% a mixture of Stock Election Consideration and 30% Cash Election Consideration with respect to each share of such holder’s CBI 's Westbank Common Stock, as provided herein. Any shares of CBI Westbank Common Stock with respect to which the holder thereof shall not, as of the Election Deadline, have made such an election by submission to the Exchange Agent on an effective, properly completed Election Form shall be deemed Non-Election Shares (“"Non-Election Shares”").
3.2.2 The term "Election Deadline", as used below, shall mean 5:00 p.m., Eastern time, on a date determined by NewAlliance, which date shall not be earlier than the fifteenth (15th) Business Day following but not including the date of mailing of the Election Form or such other date as NewAlliance and Westbank shall mutually agree upon, provided in any event, the Election Deadline shall be deemed at or before the Effective Time. Any election to receive NewAlliance Common Stock or cash shall have elected been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. Any Election Form may be revoked or changed by the Person submitting such Election Form to the Exchange Agent by written notice to the Exchange Agent only if such notice is actually received, including by facsimile, by the Exchange Agent at or prior to the Election Deadline. The Certificate or Certificates representing Westbank Common Stock relating to any revoked Election Form shall be promptly returned without charge to the Person submitting the Election Form to the Exchange Agent. The Exchange Agent shall have discretion to determine when any election, modification or revocation is received and whether any such election, modification or revocation has been properly made. The Exchange Agent shall promptly calculate the allocation, if any, among holders of Westbank Common Stock of rights to receive the Stock Election Price and the Cash Election Price as follows: If the number of Stock Election Shares does not equal the Stock Conversion Number, then the Stock Election Shares and the Cash Election Shares will be converted into the right to receive NewAlliance Common Stock and cash in the following manner:
(a) If the aggregate number of Stock Election Shares (the "Stock Election Number") exceeds the Stock Conversion Number, then all Westbank Cash Election Shares and all Non-Election Shares of each holder thereof shall be converted into the right to receive the Cash Consideration, and Stock Election Shares of each holder thereof will be converted into the right to receive the Stock Consideration in respect of that number of Stock Election Shares equal to the product obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the numerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the remaining number of such holder's Stock Election Shares being converted into the right to receive the Cash Election Consideration; and
(b) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the "Shortfall Number"), then all Stock Election Shares shall be converted into the right to receive the Stock Consideration and the Non-Election Shares and Cash Election Shares shall be treated in the following manner:
(i) If the Shortfall Number is less than or equal to the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Election Consideration and the Non-Election Shares of each holder thereof shall be converted into the right to receive the Stock Consideration in respect of that number of Non-Election Shares equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder's Non-Election Shares being converted into the right to receive the Cash Election Price Consideration; or
(ii) If the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Election Consideration, and Cash Election Shares of each holder thereof shall be converted into the right to receive the Stock Election Consideration in accordance with Section 3.1.3, subject respect of that number of Cash Election Shares equal to the proproduct obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-ration procedures described in Section 3.2.2Election Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder's Cash Election Shares being converted into the right to receive the Cash Election Consideration.
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