Common use of Share Elections Clause in Contracts

Share Elections. (i) Each person who, on or prior to the Election Date referred to in (iii) below, is a record holder of Shares will be entitled, with respect to all or any portion of such holder's Shares, to make an unconditional election (a "Non-Cash Election") on or prior to such Election Date to retain Non-Cash Election Shares, on the basis hereinafter set forth. (ii) Sub shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company (the "Form of Election"), with the Prospectus/Proxy Statement (as defined in Section 3.8) to the record holders of Shares as of the record date for the Stockholder Meeting (as defined in Section 6.1), which Form of Election shall be used by each record holder of Shares that wishes to elect to retain Non-Cash Election Shares for any or all Shares held by such holder. The Company will use its reasonable efforts to make the Form of Election and the Prospectus/Proxy Statement available to all persons who become holders of Shares during the period between such record date and the Election Date referred to below. Any such holder's election to retain Non-Cash Election Shares shall have been properly made only if the Exchange Agent (as defined in Section 2.3(a)) shall have received at its designated office by 5:00 p.m., New York City time on the second trading day (the "Election Date") next preceding the date of the Stockholder Meeting, a Form of Election properly completed and signed and accompanied by certificates for the Shares to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such certificates as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States, provided such certificates are in fact delivered to the Exchange Agent within three New York Stock Exchange trading days after the date of execution of such guarantee of delivery). (iii) Any Form of Election may be revoked by the holder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Election Date (unless Sub and the Company determine not less than two business days prior to the Election Date that the Effective Time is not likely to occur within five business days following the date of the Stockholder Meeting, in which case the Form of Election will remain revocable until a subsequent date which shall be a date prior to the Effective Time determined by Sub and the Company). In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Sub 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 to which such Form of Election relates shall be promptly returned to the holder submitting the same to the Exchange Agent. (iv) The determination of the Exchange Agent shall be binding as to whether or not elections to retain Non-Cash Election Shares have been properly made or revoked pursuant to this Section 2.1 with respect to Shares and when elections and revocations were received by it. If the Exchange Agent determines that any election to retain Non-Cash Election Shares was not properly made with respect to Shares, such Shares shall be treated by the Exchange Agent as Shares which were not Electing Shares at the Effective Time. The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 2.1(d), and any such computation shall be conclusive and binding on the holders of Shares. The Exchange Agent may, with the mutual agreement of Sub and the Company, make such rules as are consistent with this Section 2.1 for the implementation of the elections provided for herein as shall be necessary or desirable fully to effect such elections.

Share Elections. (i) Each person who, on or prior to the Election Date referred to in (iii) belowDate, is a record holder of Shares will be entitled, with respect to all or any portion of all, but not less than all, such holder's Shares, to make an unconditional election (( a "NonNON-Cash ElectionCASH ELECTION") on or prior to such Election Date to retain Non-Cash Election Shares, on the basis hereinafter set forthforth herein. (ii) Sub The Company shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company Acquisition Sub (the "Form of ElectionFORM OF ELECTION"), with the Prospectus/Proxy Statement (as defined in Section 3.8) to the record holders of Shares as of the record date for the Stockholder Meeting (as defined in Section 6.1)Company Stockholders Meeting, which Form of Election shall be used by each record holder of Shares that wishes to elect elect, with respect to all, but not less than all, such holder's Shares, to retain Non-Cash Election Shares for any or all Shares held by such holderShares. The Company will use its reasonable efforts to make the Form of Election and the Prospectus/Proxy Statement available to all persons who become holders of Shares during the period between such record date and the Election Date referred to belowDate. Any such holder's election to retain Non-Cash Election Shares shall have been properly made only if the Exchange Agent (as defined in Section 2.3(a)) shall have received at its designated office by 5:00 p.m., New York City time time, on the second trading day (the "Election DateELECTION DATE") next preceding the date of the Stockholder Company Stockholders Meeting, a Form of Election reflecting such holder's election with respect to all, but not less than all, such holder's Shares and the Stockholders Agreement, in each case, properly completed and signed and accompanied by certificates for the all Shares to which held by such Form of Election relatesholder, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such certificates as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the National Association of Securities Dealers, Inc. Inc., or a commercial bank or trust company having an office or correspondent in the United States, provided PROVIDED that such certificates are in fact delivered to the Exchange Agent within three New York Stock Exchange trading days after the date of execution of such guarantee of delivery). (iii) Any Form of Election may be revoked by the holder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Election Date (unless Sub and the Company determine not less than two business days prior to the Election Date that the Effective Time is not likely to occur within five business days following the date of the Stockholder Meeting, in which case the Form of Election will remain revocable until a subsequent date which shall be a date prior to the Effective Time determined by Sub and the Company)Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Sub and the Company and Acquisition Sub that the Merger has been abandoned. If a Form of Election is revoked, the certificate or certificates (or guarantees of delivery, as appropriateapplicable) for the Shares to which such Form of Election relates shall be promptly returned to the holder submitting the same to the Exchange Agent. (iv) The determination of the Exchange Agent shall be binding as to whether or not elections to retain Non-Cash Election Shares have been properly made or revoked pursuant to this Section 2.1 SECTION 3.01(D) with respect to Shares and when elections and revocations were received by it. If the Exchange Agent determines that any election to retain Non-Cash Election Shares was revoked or was not properly made with respect to Shares, such Shares shall be treated by the Exchange Agent as Shares which were not Electing Shares at the Effective Time. The Exchange Agent also shall also make all computations as to the allocation and the proration contemplated by Section 2.1(dSECTION 3.01(E), and any such computation shall be conclusive and binding on the holders of Shares. The Exchange Agent may, with the mutual agreement of Sub the Company and the CompanyAcquisition Sub, make such rules as are consistent with this Section 2.1 SECTION 3.01 for the implementation of the elections provided for herein as shall be necessary or desirable fully to effect such elections.

Share Elections. (ia) Each person who, on or prior to the Election Date referred to in (iiiSection 2.3(c) below, is a record holder of Shares will be entitled, with respect to all or any portion of such holder's his Shares, to make an unconditional election (a "Non-Cash Election") on or prior to such Election Date to retain Non-Cash Election Shares, on the basis hereinafter set forth. (iib) Sub Not later than five (5) business days prior to the mailing of the definitive Proxy Statement, Fremont shall appoint a nationally recognized bank or trust company (or another entity reasonably satisfactory to the Company) to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Fremont shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company (the "Form of Election"), and such Form of Election shall be mailed with the Prospectus/Proxy Statement (as defined in Section 3.8) to the record holders of Shares as of the record date for the Stockholder Meeting (as defined in Section 6.1)Stockholders Meeting, which Form of Election shall be used by each record holder of Shares that who wishes to elect to retain Non-Cash Election Shares for any or all Shares held held, subject to the provisions of Section 2.4 hereof, by such holder. The Company will use its reasonable best efforts to make the Form of Election and the Prospectus/Proxy Statement available to all persons who become holders of Shares during the period between such record date and the date of the Stockholders Meeting (the "Election Date referred to belowDate"). Any such holder's election to retain Non-Cash Election Shares shall have been properly made only if the Exchange Agent (as defined in Section 2.3(a)) shall have received at its designated office office, by 5:00 p.m., New York City time on the second trading day (the "Election Date") next preceding the date of the Stockholder Meeting, a Form of Election properly completed and signed and accompanied by certificates for the Shares to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such certificates as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States, provided such certificates are in fact delivered to the Exchange Agent within three New York Stock Exchange five NASDAQ trading days after the date of execution of such guarantee of delivery). (iiid) Any Form of Election may be revoked by the holder stockholder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Election Date (unless Sub and the Company determine not less than two business days prior to the Election Date that the Effective Time is not likely to occur within five business days following the date of the Stockholder Meeting, in which case the Form of Election will remain revocable until a subsequent date which shall be a date prior to the Effective Time determined by Sub and the Company)Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Sub Fremont 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 to which such Form of Election relates shall be promptly returned by the Exchange Agent to the holder stockholder submitting the same to the Exchange Agent. (ive) The determination of the Exchange Agent shall be binding as to (i) whether or not elections to retain Non-Cash Election Shares have been properly made or revoked pursuant to this Section 2.1 2.3 with respect to Shares and (ii) when elections and revocations were received by itthe Exchange Agent. If the Exchange Agent determines that any election to retain Non-Cash Election Shares was not properly made with respect to Shares, such Shares shall be treated by the Exchange Agent as Shares which were not Electing Shares at the Effective Time, and, subject to Section 2.4, such Shares shall be exchanged in the Merger for cash pursuant to Section 2.1(c)(ii). The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 2.1(d)2.4, and any such computation shall be conclusive and binding on the holders of Shares. The Exchange Agent may, with the mutual agreement of Sub Fremont and the Company, make such rules as are consistent with this Section 2.1 2.3 for the implementation of the elections provided for herein as shall be necessary or desirable fully to effect fully such elections.