Common use of Share Elections Clause in Contracts

Share Elections. (a) Each person who, on or prior to the Election Date referred to in Section 2.04(b), is a record holder of shares of Company Common Stock shall be entitled, with respect to all or any portion of such shares, to make an unconditional Share Election or an unconditional Cash Election, in each case specifying that number of shares of Company Common Stock such holder desires to have converted into the Share Consideration and that number of shares of Company Common Stock such holder desires to have converted into the Cash Consideration, as applicable, on or prior to such Election Date, on the basis hereinafter set forth. (b) Parent shall prepare a form of election, which form shall be subject to the reasonable approval of the Company (the "Form of Election") and shall be mailed with the Proxy Statement to the record holders of Company Common Stock as of the record date for the Stockholders Meeting, which Form of Election shall be used by each record holder of shares of Company Common Stock who wishes to elect to receive the Share Consideration or the Cash Consideration, as applicable, for any or all shares of Company Common Stock held by such holder. The Company shall use all reasonable efforts to make the Form of Election and the Proxy Statement available to all persons who become record holders of Company Common Stock during the period between such record date and the Election Date. Any such holder's (and such authorized representative's) election to receive the Share Consideration or the Cash Consideration, as applicable, shall have been properly made only if the Exchange Agent shall have received a Form of Election, properly completed and signed, at its designated office, by 5:00 p.m., New York City time, on the business day immediately preceding the date of the Stockholders Meeting (the "Election Date"). (c) Any Form of Election may be revoked, by the stockholder who submitted such Form of Election to the Exchange Agent, only by written notice received by the Exchange Agent (i) prior to 5:00 p.m., New York City time, on the Election Date or (ii) after such time, if (and only to the extent that) the Exchange Agent is legally required to permit revocations and only if the Effective Time shall not have occurred prior to such date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Parent and the Company that the Merger has been abandoned. If a Form of Election is revoked, the Certificate or Certificates (or guarantees of delivery, as appropriate) for the shares of Company Common Stock to which such Form of Election relates shall be promptly returned to the stockholder that submitted the same to the Exchange Agent. (d) The determination of the Exchange Agent in its sole discretion shall be binding as to whether or not elections to receive the Share Consideration or the Cash Consideration have been properly made or revoked pursuant to this Section 2.04 with respect to shares of Company Common Stock and when elections and revocations were received by it. If no Form of Election is received with respect to shares of Company Common Stock, or if the Exchange Agent determines that any election to receive the Merger Consideration was not properly made with respect to shares of Company Common Stock, the holder of such shares shall be treated by the Exchange Agent as having submitted a (i) a Share Election with respect to 50% of the shares held by such holder and (ii) Cash Election with respect to 50% of the shares held by such holder and, subject to Section 2.05, such shares shall be converted at the Effective Time into the right to receive the appropriate amount of Share Consideration and Cash Consideration. The Exchange Agent shall also make all computations as to the proration contemplated by Section 2.05, and absent manifest error any such computation shall be conclusive and binding on the holders of shares of Company Common Stock. The Exchange Agent may, with the mutual agreement of Parent and the Company, make such rules as are consistent with this Section 2.04 for the implementation of the elections provided for herein as shall be necessary or desirable fully to effect such elections and the provisions of this Section 2.04.

Share Elections. (a) Each person who, on or prior to the Election Date referred to in Section 2.04(b(as hereinafter defined), is a record holder of shares of Company Common Stock or Preferred Stock shall be entitled, with respect to all or any portion of such shares, to make a Cash Election, subject to adjustment pursuant to Section 1.11, or an unconditional Share Election or an unconditional Cash Election, in each case specifying that number of shares of Company Common Stock or Preferred Stock such holder desires to have converted into the Share Consideration and that number of shares of Company Common Stock or Preferred Stock such holder desires to have converted into the Cash Consideration, as applicable, on or prior to such Election Date, on the basis hereinafter set forth. (b) Parent BDCO shall prepare a form of election, which form shall be subject to the reasonable approval of the Company ARO (the "Form of Election") and shall be mailed with the Proxy Statement (as defined in Section 4.4(a)) to the record holders of Company Common Stock and Preferred Stock as of the record date for the Stockholders MeetingARO Stockholders' Meeting (as defined in Section 4.5), which Form of Election shall be used by each record holder of shares of Company Common Stock and Preferred Stock who wishes to elect to receive the Share Consideration or the Cash Consideration, Consideration as applicable, for any or all shares of Company Common Stock and Preferred Stock held by such holder. The Company ARO shall use all reasonable efforts to make the Form of Election and the Proxy Statement available to all persons who become record holders of Company Common Stock and Preferred Stock during the that period between such record date and the Election Date. Any such holder's (and such authorized representative's) election to receive the Share Consideration or the Cash Consideration, as applicable, shall have been properly made only if the Exchange Agent shall have received a Form of Election, properly completed and signed, at its designated office, by 5:00 p.m., New York City timeCentral Standard Time, on the business day immediately preceding the date of the Stockholders ARO Stockholders' Meeting (the "Election Date"). (c) Any Form of Election may be revoked, by the stockholder who submitted such Form of Election election to the Exchange Agent, only by written notice received by the Exchange Agent (i) prior to 5:00 p.m., New York City timeCentral Standard Time, on the Election Date or (ii) after such time, if (and only to the extent that) the Exchange Agent is legally required to permit revocations and only if the Effective Time shall not have occurred prior to such date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Parent BDCO and the Company ARO that the Merger has been abandoned. If a Form of Election is revoked, the Certificate or Certificates (or guarantees of delivery, as appropriate) for the shares of Company Common Stock or Preferred Stock, to which such Form of Election is relates shall be promptly returned to the stockholder that submitted the same to the Exchange Agent. (d) The determination of the Exchange Agent in its sole discretion shall be binding as to whether or not elections to receive the Share Stock Consideration or the Cash Consideration have been properly made or revoked pursuant to this Section 2.04 1.10 with respect to shares of Company Common Stock or Preferred Stock and when elections and revocations were received by it. If no Form of Election is received with respect to shares of Company Common Stock or Preferred Stock, or if the Exchange Agent determines that any election to receive the Merger Consideration was not properly made with respect to shares of Company Common Stock or Preferred Stock, the holder of such shares shall be treated by the Exchange Agent as having submitted a (i) a Share Election with respect to 50100% of the shares held by such holder and (ii) Cash Election with respect to 50% of the shares held by such holder and, subject to Section 2.05, such shares shall be converted at the Effective Time into the right to receive the appropriate amount of Share Consideration and Cash Considerationholder. The Exchange Agent shall also make all computations as to the proration contemplated by Section 2.051.11, and absent manifest error any such computation shall be conclusive and binding on the holders of shares of Company Common Stock and Preferred Stock. The Exchange Agent may, with the mutual agreement of Parent BDCO and the CompanyARO, make such rules as are consistent with this Section 2.04 1.10 for the implementation of the elections provided for herein as shall be necessary or desirable fully to effect such elections and the provisions of this Section 2.041.10.