Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. (b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable. (c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund. (d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law. (e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof. (f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof. (g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Skyworks Solutions, Inc.), Merger Agreement (PMC Sierra Inc), Merger Agreement (Skyworks Solutions, Inc.)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint a bank, trust company or nationally recognized stockholder services provider or such other Person reasonably acceptable to the Company as the exchange agent (or cause to be depositedthe “Exchange Agent”) with the Paying Agent, for the account purpose of exchanging Certificates and benefit of the former holders Book-Entry Shares representing shares of Company Common Stock. Parent will make available to the Exchange Agent, an amount of cash sufficient to pay as needed, the Merger Consideration payable pursuant to this Article III (such cash shall be referred to delivered in this Agreement as respect of the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to shares of Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Stock. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock as of the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits to the Exchange Agent) in such form as the Company and Parent may reasonably agree, for use in effecting delivery of loss in lieu thereof) or transfer shares of Company Common Stock to the Book Exchange Agent. Exchange of any Book-Entry Shares shall be effected in accordance with Parent’s customary procedures with respect to securities represented by book entry.
(b) Each holder of shares of Company Common Stock that have been converted into a right to receive the Merger Consideration, upon surrender to the Paying Exchange Agent of a Certificate or Book-Entry Share, together with a properly completed letter of transmittal, will be entitled to receive (i) one or more shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested or required by applicable law) representing, in the aggregate, the number of shares of Parent Common Stock that such holder has the right to receive pursuant to Section 1.4 and (ii) instructions for use a check in effecting the surrender amount equal to any cash payable in lieu of fractional shares which such holder has the Certificates right to receive pursuant to Section 2.2 and in respect of any dividends and other distributions which such holder has the right to receive pursuant to Section 2.1(f). No interest shall be paid or transfer of the Book Entry Shares in exchange for payment of the accrued on any Merger Consideration, the form cash payable in lieu of fractional shares or cash payable in respect of dividends and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid distributions payable to holders of Book Certificates or Book-Entry Shares pursuant to Section 2.1(f). Until so surrendered, each such Certificate or Certificates in connection withBook-Entry Share shall, or accrued onafter the Effective Time, represent for all purposes only the right to receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to registered in the name of a Person other than the stockholder Person in whose name the Book Entry Share transferred or applicable surrendered Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange to the registration thereof that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange delivery of the Merger Consideration shall pay to the Paying Exchange Agent any transfer or other similar Taxes required by reason as a result of payment such registration in the name of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations payable. Delivery of the United States aggregate Merger Consideration, as applicable, with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable respect to Book-Entry Shares shall only be made to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any Person in whose name such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation registered. For purposes of this Agreement, “Person” or the Paying Agent for “person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any reasonother entity or organization, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of a government or political subdivision or any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent agency or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect instrumentality thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 3 contracts
Samples: Merger Agreement (Hess Corp), Merger Agreement (Hess Corp), Merger Agreement (Chevron Corp)
Surrender and Payment. (a) At On or prior to the ClosingClosing Date, Parent shall appoint select a United States reputable bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable satisfactory to the Company to act, among other things, act as paying exchange agent in the Merger (the “Exchange Agent”) for the Merger and to deliver purpose of exchanging for the Merger Consideration to former stockholders of the CompanyOffer Price (i) Company Stock Certificates or (ii) Book Entry Shares. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to Promptly after the Effective Time, Parent shall deposit (or cause pay to the Exchange Agent, the aggregate Offer Price to be deposited) paid in respect of the Company Stock Certificates and the Book Entry Shares. The cash amount so deposited with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be Exchange Agent is referred to in this Agreement as the “Consideration Exchange Fund.”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after Time, the Exchange Agent will mail to the Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, transmittal in customary form, that form and containing such provisions as Parent may reasonably specify and the Company shall specify reasonably approve prior to the Effective Time (including a provision confirming that delivery of such Company Stock Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Company Stock Certificates or Book Entry Shares, as applicable, Shares shall pass, only upon proper delivery of the such Company Stock Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent); and (ii) instructions for use in effecting the surrender of the Company Stock Certificates or transfer of the Book Entry Shares in exchange for payment the Offer Price. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Merger ConsiderationExchange Agent for exchange, the form and substance of which together with a duly executed letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be reasonably required pursuant to such instructions, by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Share or Certificate Shares shall be entitled to receive in exchange therefortherefor the Offer Price; and (B) the Company Stock Certificate or Book Entry Shares so surrendered shall be canceled. Until surrendered as contemplated by this Section 2.07(b), subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, each Company Stock Certificate and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendereddeemed, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on to represent only the share transfer books of right to receive the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawOffer Price. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Company Stock Certificate shall have been lost, stolen or destroyed, upon Parent may, in its reasonable discretion and as a condition to the making payment of an affidavit the Offer Price, require the owner of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and indemnification obligation against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) Any portion of the Exchange Fund that remains undistributed to holders of Company Stock Certificates and Book Entry Shares as of the date that is one year after the date on which the Merger Consideration becomes effective shall be delivered to which such Person is Parent upon demand, and any holders of Company Stock Certificates or Book Entry Shares who have not theretofore surrendered their Company Stock Certificates or Book Entry Shares in accordance with this Section 2.07 shall thereafter look only to Parent for satisfaction of their claims for payment of the Offer Price.
(d) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled in respect of such Certificate to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Article IIIAgreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and timely paid to the appropriate Governmental Body, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(e) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock or to any other Person with respect to the payment of the Offer Price, or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other Legal Requirement.
Appears in 3 contracts
Samples: Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingElection Record Date, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States an agent (the “ Paying “Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger purpose of (i) mailing and to deliver receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to former stockholders be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the CompanyCertificates and the Uncertificated Shares. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to Promptly after the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercisesend, or who shall have effectively withdrawn or lostcause the Exchange Agent to send, their rights to appraisal each record holder of such Company Common Siebel Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after at the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Considerationsuch exchange; provided, the form and substance of which that any such letter of transmittal and instructions shall be as reasonably agreed sent to by the Company and Parent and prepared prior holders of Uncertificated Shares only to the Closing. Upon extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate for cancellation to the Paying Agentor Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in each case together with such letter of transmittaluncertificated book-entry form, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Book Entry Certificate or Uncertificated Share or Certificate shall be entitled represent after the Effective Time for all purposes only the right to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the such Siebel Merger Consideration. .
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has taxes have been paid or is are not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeSiebel Stock. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Siebel Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the applicable Siebel Merger Consideration pursuant to Consideration, in accordance with the procedures set forth in this Article III, except as otherwise provided by LawSection 3.10.
(e) Any portion of the Siebel Merger Consideration Fund (including made available by Parent to the proceeds of any investments thereofExchange Agent pursuant to Section 3.10(a) that remains unclaimed by the former Company stockholders one (1) year holders of shares of Siebel Stock six months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered returned to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares upon demand, and any such holder who has not theretofore complied exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Article III with respect Section 3.10 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Siebel Merger Consideration Consideration, and any dividends and distributions with respect thereto, in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Siebel Stock for any amounts paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or Book Entry Share shall not have been surrendered or transferredsuch earlier date, respectively, immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallEntity) shall become, to the extent permitted by applicable Lawlaw, become the property of Parent Parent, free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificate Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been lostregistered, stolen (i) at the time of such surrender or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedtransfer, the Paying Agent shall issue amount of any cash payable in exchange for such lost, stolen or destroyed Certificate the Merger Consideration lieu of fractional shares to which such Person is entitled in respect pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such Certificate surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to this Article IIISection 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 3 contracts
Samples: Merger Agreement (Oracle Corp /De/), Merger Agreement (Siebel Systems Inc), Merger Agreement (Siebel Systems Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint Computershare Trust Company, N.A. (or cause its successor) as the exchange agent (or such other nationally recognized exchange agent agreed to be depositedbetween the parties hereto) with (the Paying “Exchange Agent, ”) for the account and benefit purpose of exchanging for the former holders Merger Consideration certificates representing shares of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III Stock (such cash shall be referred to in this Agreement as the “Consideration FundCertificates”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock. Prior to the Effective Time, Parent shall enter into an exchange agent agreement, in form and substance reasonably acceptable to the Company, with such Exchange Agent for the payment of the Merger Consideration in accordance with this Agreement. Immediately following the Effective Time, (x) Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the holders of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, cash in an amount sufficient to pay the aggregate per share Merger Consideration (less the amount of cash directed by Parent to be deposited by the Company pursuant to clause (y)) and (y) at the written request of Parent at least three (3) Business Days prior to the Closing, the Company shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the holders of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time an amount in cash as specified by Parent in such written notice in an amount not to exceed the Company’s then-available cash on hand (the “Payment Fund”). To the extent, following the deposits contemplated by the preceding clauses (x) and (y), such fund diminishes for any reason below the level required to make prompt payment of the Merger Consideration, Parent shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable hereunder, and following any losses Parent shall (or shall cause the Surviving Corporation to) promptly provide additional funds to the Exchange Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days days, or guaranteed by the United States by, and backed by the full faith and credit of of, the United States. Earnings on the Consideration Fund in excess of the amounts Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directsSurviving Corporation. No investment of the Consideration The Payment Fund shall relieve Parent, not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation or to) pay all charges and expenses, including those of the Paying Agent from promptly making Exchange Agent, in connection with the payments required by this Article IIIexchange of shares of Company Common Stock and the payment of the Merger Consideration in respect of such shares of Company Common Stock.
(b) Promptly after the Effective Time, and following in any losses from any such investmentevent no later than three (3) Business Days after the Effective Time, Parent shall promptly provide additional cash funds send, or shall cause the Exchange Agent to the Paying Agent for the benefit send, to each record holder of the Company’s stockholders shares of Company Common Stock at the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent) for use in such exchange. Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the shares of Company Common Stock represented by a Certificate, within two (2) Business Days, upon (i) surrender to the Exchange Agent of a Certificate, together with a duly completed and validly executed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the amount case of a book-entry transfer of shares of Company Common Stock, and, in each case, delivery to the Exchange Agent of such losses other documents as may reasonably be requested by the Exchange Agent. Until so surrendered or transferred, each such Certificate shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall pay to the extent Exchange Agent any transfer or other Tax required as a result of such payment to a Person other than the funds in registered holder of such Certificate or establish to the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part satisfaction of the Consideration FundExchange Agent that such Tax has been paid or is not payable.
(d) At All Merger Consideration paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately on the stock transfer books of the Surviving Corporation other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to as provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and holder’s compliance with the Paying Agent) replacement requirements established by the Person claiming such certificate to be lostExchange Agent, stolen or destroyedincluding, if necessary, the Paying posting by such Person of a bond, in such customary amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall issue will issue, in exchange for such lost, stolen or destroyed Certificate Certificate, the Merger Consideration to which such Person is entitled be paid in respect of the shares of Company Common Stock formerly represented by such Certificate pursuant to Certificate, as contemplated under this Article III2.
(f) Any portion of the Payment Fund that remains unclaimed by the holders of shares of Company Common Stock twelve (12) months after the Effective Time shall be delivered to the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to Parent and the Surviving Corporation for payment of the Merger Consideration.
Appears in 3 contracts
Samples: Merger Agreement (Tzuo Tien), Merger Agreement (Zuora Inc), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint a bank, trust company or nationally recognized stockholder services provider or such other Person reasonably acceptable to the Company as the exchange agent (or cause to be depositedthe “Exchange Agent”) with the Paying Agent, for the account purpose of exchanging Certificates and benefit of the former holders Book-Entry Shares representing shares of Company Common Stock. Parent will make available to the Exchange Agent, an amount of cash sufficient to pay as needed, the Merger Consideration payable pursuant to this Article III (such cash shall be referred to delivered in this Agreement as respect of the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to shares of Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Stock. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock as of the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent) in such form as the Company and (ii) instructions Parent may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the surrender Exchange Agent. Exchange of the Certificates or transfer of the Book any Book-Entry Shares shall be effected in exchange for payment accordance with Parent’s customary procedures with respect to securities represented by book entry.
(b) Each holder of shares of Company Common Stock that have been converted into a right to receive the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agentor Book-Entry Share, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall will be entitled to receive (A) one or more shares of Parent Common Stock (which shall be in exchange therefornon-certificated book-entry form unless a physical certificate is requested) representing, subject in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to any required withholding receive pursuant to Section 1.4 and (B) a check in the amount equal to the cash portion of Taxes, the Merger Consideration that such holder has the right to receive pursuant to the provisions of Section 1.4 and this Article IIIII, including cash payable in lieu of fractional shares pursuant to Section 2.2 and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelleddividends and other distributions pursuant to Section 2.1(f). No interest will shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions payable to holders of Book Certificates or Book-Entry Shares Shares. Until so surrendered, each such Certificate or Certificates in connection withBook-Entry Share shall, or accrued onafter the Effective Time, represent for all purposes only the right to receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to registered in the name of a Person other than the stockholder Person in whose name the Book Entry Share transferred or applicable surrendered Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange to the registration thereof that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange delivery of the Merger Consideration shall pay to the Paying Exchange Agent any transfer or other similar Taxes required by reason as a result of payment such registration in the name of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations payable. Delivery of the United States aggregate Merger Consideration, as applicable, with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable respect to Book-Entry Shares shall only be made to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any Person in whose name such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation registered. For purposes of this Agreement, “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or the Paying Agent for any reasonother entity or organization, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of a government or political subdivision or any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent agency or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect instrumentality thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 3 contracts
Samples: Merger Agreement (Anadarko Petroleum Corp), Agreement and Plan of Merger (Anadarko Petroleum Corp), Merger Agreement (Chevron Corp)
Surrender and Payment. (a) At Prior to the date of mailing of the Joint Proxy Statement/Prospectus, DSW shall appoint an agent (the “Exchange Agent”) reasonably acceptable to RVI for the purpose of exchanging certificates or book entries, as applicable, which immediately prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in Effective Time evidenced shares of RVI Common Stock and the United States associated Common Stock Purchase Rights (the “ Paying Agent“Certificates”) that is reasonably acceptable to the Company to act), among other things, as paying agent for the applicable Merger Consideration pursuant to an exchange agent agreement in form and substance reasonably satisfactory to deliver RVI. On or before the Effective Time, DSW shall deposit, or shall cause to be deposited, with the Exchange Agent, the Merger Consideration to former stockholders be exchanged or paid in accordance with this Article II, and DSW shall make available from time to time after the Effective Time as necessary, cash in an amount sufficient to pay any cash payable in lieu of the Companyfractional shares pursuant to Section 2.4 and any dividends or distributions to which holders of shares of RVI Common Stock may be entitled pursuant to Section 2.3(c). The Company and Parent Surviving Entity shall enter into a Paying send, or shall cause the Exchange Agent agreement with the Paying Agentto send, which agreement shall set forth the duties, responsibilities and obligations to each holder of the Paying Agent consistent with the terms record of this Agreement. At or shares of RVI Common Stock immediately prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive the Merger Consideration pursuant to Section 3.1: 2.1, promptly after the Effective Time, (i) a letter of transmittal, transmittal for use in customary form, that such exchange (which shall be in form and substance reasonably satisfactory to DSW and RVI and shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to in respect of the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent) and (ii) instructions for use in effecting to effect the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment the applicable Merger Consideration and any dividends or other distributions payable in respect thereof pursuant to Section 2.3(c).
(b) Each holder of shares of RVI Common Stock that have been converted into the right to receive the applicable Merger ConsiderationConsideration and any dividends or other distributions payable in respect thereof pursuant to Section 2.3(c), upon surrender to the form and substance Exchange Agent of which a Certificate or Certificates, together with a properly completed letter of transmittal covering such shares and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as the Exchange Agent may be required pursuant to such instructionsreasonably require, the holder of such Book Entry Share or Certificate shall be entitled to receive the applicable Merger Consideration payable in respect of such shares of RVI Common Stock. The holder of such Certificate, upon its delivery thereof to the Exchange Agent, shall also receive any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c). Certificates surrendered shall forthwith be cancelled as of the Effective Time. Until so surrendered, each such Certificate, following the Effective Time, shall represent for all purposes only the right to receive the applicable Merger Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.4 and any dividends or other distributions payable in respect thereof pursuant to Section 2.3(c). No interest shall be paid or accrued for the benefit of holders of the Certificates on cash amounts payable upon the surrender of such Certificates pursuant to this Section 2.3.
(c) Whenever a dividend or other distribution is declared or made after the date hereof with respect to DSW Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all shares of DSW Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the Effective Time with respect to DSW Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the DSW Common Stock such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.3. Subject to applicable Law, following surrender of any such Certificate, there shall be paid to the record holder of the certificates representing whole shares of DSW Common Stock issued in exchange therefor, subject to any required withholding without interest, at the time of Taxessuch surrender, the Merger Consideration pursuant amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of DSW Common Stock.
(d) In the provisions event that a transfer of this Article III, and ownership of shares of RVI Common Stock is not registered in the Book Entry Share so transferred stock transfer books or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders ledger of Book Entry Shares or Certificates in connection withRVI, or accrued on, if any certificate or book entry for the Merger Consideration. If any applicable Merger Consideration is to be paid to issued in a Person name other than that in which the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange to the issuance thereof that the Person Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay have paid to the Paying Exchange Agent any transfer or other Taxes taxes required by reason of payment as a result of the Merger Consideration to issuance of a Person certificate or book entry representing shares of DSW Common Stock in any name other than that of the stockholder owning the Book Entry Share transferred or Certificate surrenderedregistered holder of such shares of RVI Common Stock, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicablepayable. For purposes of this Agreement, “person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a Governmental Entity.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 3 contracts
Samples: Merger Agreement (DSW Inc.), Merger Agreement (Retail Ventures Inc), Merger Agreement (Retail Ventures Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time and LP Mergers Effective Time, as applicable, Parent shall appoint select a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, act as paying agent for the Public Merger and to deliver the Merger Consideration to former stockholders of LP Mergers (the Company. The Company “Paying Agent”) and Parent shall enter into a Paying Agent agreement paying agent agreement, in form and substance reasonably acceptable to the Company, with the such Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time and LP Mergers Effective Time, Parent shall deposit (or cause to be depositeddeposited (i) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, cash in an amount of cash sufficient to pay the aggregate Public Merger Consideration, LP Merger Consideration payable pursuant and Warrant Consideration (if applicable) required to this Article III be paid in accordance with Section 3.01 and Section 3.02 (such cash shall be referred to in this Agreement as the “Exchange Fund”), and (ii) with the Company, cash in an amount sufficient to pay the aggregate RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration in accordance with Section 3.06 (such cash shall be referred to in this Agreement as the “Compensatory Award Fund”). In the event the Consideration Exchange Fund or the Compensatory Award Fund shall be insufficient to pay make the payments in connection with the Public Merger Consideration (including with respect to Company Common Stock held and the LP Mergers contemplated by stockholders who did not vote in favor of the Merger but who did not exerciseSection 3.01, Section 3.02 or who shall have effectively withdrawn or lostSection 3.06, their rights to appraisal of such Company Common Stock under the DGCL)respectively, Parent shall promptly deliver, deposit or cause to be delivered, deposited additional funds to with the Paying Agent or the Surviving Corporation, as applicable, in an amount that is equal to the deficiency in the amount required to make such paymentsthe applicable payment. The Paying Agent shall, pursuant to irrevocable instructions, deliver the Public Merger Consideration and LP Merger Consideration contemplated to be issued pursuant to Section 3.01 and Section 3.02 out of the Exchange Fund. Parent shall cause the Surviving Corporation to pay the RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration contemplated to be paid pursuant to Section 3.06 out of the Compensatory Award Fund.
(b) Promptly As soon as reasonably practicable after the Effective Time (and the LP Mergers Effective Time, as applicable, and in any event within five not later than the second (52nd) Business Days after Day following the Effective Time and the LP Mergers Effective Time), as applicable, Parent shall will cause the Paying Agent to mail send to each stockholder whose shares were converted into holder of record (as of immediately prior to the right Effective Time and the LP Mergers Effective Time) of (i) an outstanding share of Company Class A Common Stock represented by a Certificate or an outstanding Book-Entry Share immediately prior to receive Merger Consideration the Effective Time (other than the Cancelled Shares and except for any Dissenting Shares and any unvested Company Restricted Stock Awards to be cancelled without payment in respect thereof pursuant to Section 3.1: 3.06(c)) and (iii) an outstanding Operating Partnership Unit represented by a LP Certificate or an outstanding Book-Entry Unit immediately prior to the LP Mergers Effective Time (other than the Unvested Units, LP Class B Units or Cancelled Units): (A) a letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates or LP Certificates (or effective affidavits of loss in lieu thereofthereof as provided in Section 3.04) or transfer of the Book Book-Entry Shares or Book-Entry Units, as applicable, to the Paying Agent Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Class A Common Stock outstanding immediately prior to the Effective Time and Operating Partnership Units outstanding immediately prior to the LP Mergers Effective Time and entitled to LP Merger Consideration pursuant to Section 3.02 to the Paying Agent, and (iiy) instructions for use in effecting the surrender of the Certificates or transfer LP Certificates (or effective affidavits of the Book loss in lieu thereof as provided in Section 3.04) or Book-Entry Shares or Book-Entry Units, as applicable, in exchange for payment of the Public Merger Consideration, the Consideration or LP Merger Consideration in such form as Parent and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to may reasonably agree.
(c) Upon the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate or LP Certificate (or affidavit of loss in lieu thereof as provided in Section 3.04) or Book-Entry Shares or Book-Entry Units, as applicable, for cancellation to the Paying Agent, in each case together with such a letter of transmittal, transmittal duly completed and validly executed and completed in accordance with the instructions thereto, including the Withholding Certificate from holders of Operating Partnership Units and with such other documents as may be reasonably required pursuant to such instructions, the holder of such Book shares of Company Class A Common Stock or Operating Partnership Units represented by such Certificate or LP Certificate as of immediately prior to the Effective Time or of such Book-Entry Share or Certificate Book-Entry Unit immediately prior to the Effective Time shall be entitled to receive in exchange therefor and Parent shall cause the Paying Agent to pay in exchange therefor, subject as promptly as practicable (but in any event within two (2) Business Days), an amount in cash (less any applicable withholding Taxes payable in respect thereof) equal to any required withholding the product obtained by multiplying (i) the number of Taxes, shares of Company Class A Common Stock or Operating Partnership Units represented by such Certificate or LP Certificate or of such Book-Entry Share or Book-Entry Unit by (ii) the Public Merger Consideration or LP Merger Consideration pursuant to the provisions of this Article III, and the Book Certificates, LP Certificates, Book-Entry Share so transferred Shares or Certificate so Book-Entry Units surrendered shall forthwith be cancelled. No interest will be paid to holders In the event of Book Entry Shares a transfer of ownership of shares of Company Class A Common Stock or Certificates an Operating Partnership Unit that is not registered in connection withthe transfer records of the Company or the Operating Partnerships, or accrued onas applicable, payment of the Merger Consideration. If any appropriate amount of Public Merger Consideration is to or LP Merger Consideration may be paid made to a Person other than the stockholder Person in whose name the Book Certificate, LP Certificate, Book-Entry Share transferred or Book-Entry Unit so surrendered is registered, if such Certificate or LP Certificate shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent) or such Book-Entry Share or Book-Entry Unit shall be properly transferred. The Paying Agent will accept the Certificates, LP Certificates, Book-Entry Share or Book-Entry Unit upon compliance with such reasonable terms and conditions as the Paying Agent may impose to cause an orderly exchange thereof in accordance with customary exchange practices. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit. Until so surrendered, the Certificates and the LP Certificates, Book-Entry Share or Book-Entry Unit shall be deemed from and after the Effective Time and the LP Mergers Effective Time to evidence only the right to receive the consideration payable in respect thereof pursuant to Section 3.01 or Section 3.02, as applicable.
(d) Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 2:00 P.M. (Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of shares of Company Class A Common Stock and the number of Operating Partnership Units held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Public Merger Consideration and the LP Merger Consideration, as applicable (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 2:00 P.M. (Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first (1st) Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(e) If any cash payment is to be made to a Person other than the Person in whose name the applicable surrendered in exchange therefor Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit is registered, it shall be a condition of such exchange payment that the Person requesting such exchange payment shall pay pay, or cause to the Paying Agent be paid, any transfer or other Transfer Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book surrendered Certificate, LP Certificate, Book-Entry Share transferred or Certificate surrendered, Book-Entry Unit or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has Taxes have been paid or is are not applicablepayable.
(cf) The cash in After the Consideration Fund Effective Time and LP Mergers Effective Time, as applicable, there shall be invested no further registration of transfers of shares of Company Class A Common Stock or Operating Partnership Units that were issued and outstanding immediately prior to the Effective Time, as applicable. From and after the Effective Time and the LP Mergers Effective Time, as applicable, the outstanding shares of Company Class A Common Stock and Operating Partnership Units that are canceled pursuant to Section 3.02 represented by Certificates or LP Certificates immediately prior to the Effective Time, and the Book-Entry Shares or Book-Entry Units outstanding immediately prior to the Effective Time and LP Mergers Effective Time, as applicable, will no longer be outstanding and will be cancelled automatically and cease to exist and each holder thereof shall cease to have any rights with respect to such shares of Company Class A Common Stock and Operating Partnership Units, except as otherwise provided in this Agreement or by Applicable Law. If, after the Effective Time and the LP Mergers Effective Time, as applicable, Certificates, LP Certificates, Book-Entry Shares, Book-Entry Units or the Company Warrants are presented to the Paying Agent, the Surviving Corporation, the Surviving Limited Partnerships or Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article III.
(g) Any portion of the Exchange Fund (including the proceeds of any investments of the Exchange Fund) that remains unclaimed by the Paying Agent as directed holders of shares of Company Class A Common Stock, Operating Partnership Units or the Company Warrants (if applicable) after the date which is one (1) year following the Effective Time shall be returned to Parent or an Affiliate thereof designated by Parent; provided. Any holder of shares of Company Common Stock, howeverOperating Partnership Units or Company Warrants (if applicable) who has not exchanged his, that any such investments shall be in short-term obligations her or its shares of Company Class A Common Stock (including the shares of the United States Company Class A Common Stock into which the Company Warrants are exercised pursuant to Section 3.01(e) (if applicable)) or Operating Partnership Units in accordance with maturities of no more than thirty this Section 3.03 prior to that time shall thereafter look only to Parent (30as general unsecured creditors thereof) days or guaranteed by the United States and backed by the full faith and credit for delivery of the United StatesPublic Merger Consideration, LP Merger Consideration, Warrant Consideration (if applicable) or Black-Scholes Value (after giving effect to any required Tax withholdings) in respect of such holder’s shares of Company Class A Common Stock, Operating Partnership Units or Company Warrants. Earnings on the Consideration Fund in excess The Company shall pay all charges and expenses, including those of the amounts payable to Paying Agent, in connection with the exchange of Certificates, LP Certificates, Book-Entry Shares or Book-Entry Units for the Public Merger Consideration, the LP Merger Consideration or the Warrant Consideration (if applicable). Notwithstanding the foregoing, none of Parent, the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Surviving Limited Partnerships shall be liable to any Person, including any former holder of shares of Company Class A Common Stock, Operating Partnership Units, Company Warrants or Company Stock Awards, including for any Public Merger Consideration, LP Merger Consideration, Warrant Consideration (if applicable), RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration that is required to be delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws. To the fullest extent permitted by Law, immediately prior to the date any Public Merger Consideration or LP Merger Consideration would otherwise escheat to or become the property of any Governmental Authority, such Public Merger Consideration and LP Merger Consideration shall become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(h) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time and the LP Mergers Effective Time, as applicable, the Surviving Corporation or the Surviving Limited Partnerships; provided that (i) no such investment shall relieve Parent or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time holders of Company Class A Common Stock or Operating Partnership Units in the amount of such losses and (ii) no such investment shall have maturities that could prevent or materially delay payment obligations of the Parent to the extent the funds in the Consideration Fund are insufficient for be made pursuant to Section 3.03. Any interest or income produced by such purposes, which additional funds investments will be deemed payable to be part of the Consideration FundParent or its designee as directed by Xxxxxx.
(di) At All Public Merger Consideration, LP Merger Consideration, Warrant Consideration (if applicable), RSU Consideration, Restricted Stock Consideration and after the Effective Time, there shall be no transfers on the share transfer books of the Company Vested Performance Consideration issued or paid upon conversion of the shares of Company Class A Common Stock (including the shares of the Company Class A Common Stock into which the Company Warrants are exercised pursuant to Section 3.01(e) (if applicable)), Operating Partnership Units or the Company Stock Awards, as applicable, in accordance with the terms of this Agreement, shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such shares of Company Class A Common Stock, Operating Partnership Units, Company Warrants (if applicable) or Company Stock Awards, as the case may be, that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 3 contracts
Samples: Merger Agreement (Sculptor Capital Management, Inc.), Merger Agreement (Rithm Capital Corp.), Merger Agreement (Sculptor Capital Management, Inc.)
Surrender and Payment. (a) At or prior Prior to the ClosingAcceptance Time, Parent shall appoint a United States bank or and trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company as agent (the “Paying Agent”) for the purpose of exchanging (i) for the Offer Price, the Shares validly tendered and not validly withdrawn pursuant to act, among other things, as paying agent Section 2.1 and (ii) for the Merger and to deliver Consideration (A) certificates representing Shares (the “Certificates”) or (B) uncertificated Shares (the “Uncertificated Shares”), in each case, other than Shares held by the Company as treasury stock, the Company Subsidiaries, Parent or Merger Consideration to former stockholders Sub or their affiliates (as defined in Section 251(h) of the CompanyDGCL). The Company and Parent shall enter into a Paying Agent paying agent agreement with the Paying Agent, Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this AgreementAgreement and otherwise reasonably acceptable to the Company and Parent prior to the Acceptance Time. At or prior to the Effective Time, Parent shall deposit with the Paying Agent (or shall cause the Merger Sub to be deposited) deposit with the Paying Agent), for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration aggregate Offer Price payable pursuant to this Article III Section 2.1(e) and the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares (such cash shall be referred to in this Agreement as cash, the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect on account of any Merger Consideration returned to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights Parent pursuant to appraisal of such Company Common Stock under the DGCLSection 3.3(g)), Parent shall promptly deliver, or cause to be delivereddelivered (including by causing the Surviving Corporation, following the Effective Time, to deliver), additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) . Promptly after the Effective Time (and in any event within five three (53) Business Days after the Effective Time), Parent the Surviving Corporation shall send, or shall cause the Paying Agent to mail send, to each stockholder whose shares were converted into holder of Shares at the right to receive Merger Consideration pursuant to Section 3.1: Effective Time (i) other than Parent), a letter of transmittal, transmittal and instructions in customary form, that form (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent and (iiAgent) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Considerationsuch exchange, with the form and substance of which such letter of transmittal and instructions shall to be as reasonably agreed to by Parent and the Company and Parent and prepared prior to the Closing. Upon Acceptance Time.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed and validly executed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Uncertificated Shares, the Merger Consideration payable for each such Share represented by such Certificate or surrender of a Certificate for cancellation each such Uncertificated Share. Until so surrendered or transferred (as the case may be) to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with Certificate or Uncertificated Share shall represent after the instructions thereto, and with such other documents as may be required pursuant to such instructions, Effective Time for all purposes only the holder of such Book Entry Share or Certificate shall be entitled right to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any such Xxxxxx.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent and Parent that such Tax has been paid or is not applicablepayable.
(cd) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by ParentXxxxxx; provided, however, that any such investments shall be in (i) short-term obligations of the United States of America with maturities of no more than thirty three (303) days months or guaranteed by the United States of America and backed by the full faith and credit of the United StatesStates of America; (ii) commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from Xxxxx’x Investors Service, Inc. or from S&P Global Ratings, a division of S&P Global Inc.; or (iii) certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money markets deposit accounts issued or offered by, any domestic office of any commercial bank organized under the Laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent the Party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.3(a) and shall be paid as Parent it directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent any Person from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide (or shall cause the Company to promptly provide following the Effective Time) additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(de) At From and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law.
(ef) Any portion of the Merger Consideration Fund made available to the Paying Agent pursuant to Section 3.3(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former holders of Shares that have been converted into the right to receive the Merger Consideration one (1) year after the Effective Time, to the extent permitted by applicable Law, shall be returned to the Party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.3(a), upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.3 prior to that time shall thereafter look only to such party only as general creditors of such Party with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Uncertificated Shares held by them, without interest and less any required withholding pursuant to Section 3.8. Notwithstanding the foregoing, none of Parent, the Company stockholders nor any of their Affiliates shall be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares that have been converted into the right to receive the Merger Consideration one (1) year after the Effective Time shall, (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become Law the property of Parent or the Surviving CorporationCompany, as applicable, free and clear of any stockholder claims or interest of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory Merger Consideration made available to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIISection 3.3(a) to pay for Shares for which appraisal rights have been perfected shall be returned to the Party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.3(a), upon demand.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Revance Therapeutics, Inc.), Merger Agreement (Revance Therapeutics, Inc.)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent Acquiror shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is an agent reasonably acceptable to the Company to act, among other things, as paying agent (the "Exchange Agent") for the purpose of exchanging certificates representing Shares or Series B Preferred Stock (the "Certificates") for the Merger and Consideration or Preferred Merger Consideration, as applicable. Acquiror will make available to deliver the Exchange Agent, as needed, the Merger Consideration and Preferred Merger Consideration to former stockholders be paid in respect of the CompanyShares and the Series B Preferred Stock, respectively. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to Promptly after the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exerciseAcquiror will send, or who shall have effectively withdrawn or lostwill cause the Exchange Agent to send, their rights to appraisal each holder of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after record at the Effective Time (of Shares and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) Series B Preferred Stock a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent) in such form as the Company and (ii) instructions Acquiror may reasonably agree, for use in effecting delivery of Shares and Series B Preferred Stock to the surrender Exchange Agent.
(b) Each holder of the Certificates or transfer of the Book Entry Shares in exchange for payment of that have been converted into a right to receive the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant in respect of the Shares represented by such Certificate. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all purposes only the right to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. Each holder of Series B Preferred Stock that has been converted into a right to receive the Preferred Merger Consideration, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, will be entitled to receive the Preferred Merger Consideration in respect of the Series B Preferred Stock represented by such Certificate. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all purposes only the right to receive such Preferred Merger Consideration.
(c) If any portion of the Merger Consideration or the Preferred Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares or Series B Preferred Stock. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to consideration provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law1.
(e) Any portion of the Merger Consideration Fund (including or the proceeds of any investments thereofPreferred Merger Consideration made available to the Exchange Agent pursuant to Section 1.03(a) that remains unclaimed by the former Company stockholders holders of Shares or Series B Preferred Stock one (1) year after the Effective Time shall be returned to Acquiror, upon demand, and any such holder who has not exchanged his Shares for the Merger Consideration or the Series B Preferred Stock for the Preferred Merger Consideration, as applicable, in accordance with this Section prior to that time shall thereafter look only to Acquiror for payment of the Merger Consideration in respect of his Shares or the Preferred Merger Consideration in respect of the Series B Preferred Stock. Notwithstanding the foregoing, Acquiror shall not be liable to any holder of Shares or Series B Preferred Stock for any amount paid to a public official pursuant to applicable abandoned property laws. Any amounts remaining unclaimed by holders of Shares or Series B Preferred Stock three years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any governmental entity) shall, to the extent permitted by applicable Lawlaw, be delivered to Parent become the property of Acquiror free and clear of any claims or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment interest of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(f) Notwithstanding No dividends or other distributions with respect to Acquiror Common Stock or Acquiror Preferred Stock issued in the foregoing, neither the Paying Agent nor any party hereto Merger shall be liable paid to the holder of any Person unsurrendered Certificates until such Certificates are surrendered as provided in this Section. Subject to the effect of applicable laws, following such surrender, there shall be paid, without interest, to the record holder of the Acquiror Common Stock or Acquiror Preferred Stock, as appropriate, issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of cash from such Acquiror Common Stock or Acquiror Preferred Stock, as the Consideration Fund delivered to case may be, with a public official pursuant to any applicable abandoned property, escheat record date after the Effective Time and a payment date on or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect thereof would otherwise escheat to such Acquiror Common Stock or become Acquiror Preferred Stock, as the property case may be, with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of any Governmental Entity pursuant to applicable Law, any such Merger Consideration dividends or other distributions in respect of such Certificate or Book Entry Shares shallAcquiror Common Stock and Acquiror Preferred Stock, all Acquiror Common Stock and Acquiror Preferred Stock to be issued pursuant to the extent permitted by applicable Law, become Merger (but not options therefor issued pursuant to Section 1.04 unless actually exercised at the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(gEffective Time) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory entitled to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate dividends pursuant to this Article IIIthe immediately preceding sentence as if issued and outstanding as of the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Mobil Corp), Merger Agreement (Exxon Corp)
Surrender and Payment. (a) At Wave shall authorize one or prior more transfer agent(s) reasonably acceptable to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States Stone to act as Exchange Agent hereunder (the “ Paying “Exchange Agent”) that is reasonably acceptable with respect to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this AgreementMerger. At or prior to the Effective Time, Parent Wave shall deposit (or cause to be deposited) with the Paying Agent, Exchange Agent for the account and benefit of the former holders of Company Common StockStone Shares, an for exchange in accordance with this Section 3.2 through the Exchange Agent, the aggregate amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III in connection with the Merger (such cash shall be referred to in this Agreement as collectively, the “Consideration Exchange Fund”). In The Exchange Agent shall, pursuant to irrevocable instructions, deliver the event applicable Merger Consideration in exchange for surrendered Stock Certificates pursuant to Section 3.1 out of the Consideration Exchange Fund. Except as contemplated by Section 3.2(d), the Exchange Fund shall not be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsused for any other purpose.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent Wave shall cause the Paying Exchange Agent to mail send to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) holder of record of Stock Certificates a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title with respect to the Stock Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Stock Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent), and (ii) instructions for use in effecting the surrender of the Stock Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Considerationtherefor in accordance herewith (together, the form and substance “Exchange Instructions”). The Exchange Agent shall also provide for holders of which Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions shall be as reasonably agreed and to by deliver in person immediately after the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with Effective Time such letter of transmittal, duly executed transmittal and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive Stock Certificates in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, for the Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder in whose name registered holder of the Book Entry Share transferred or Certificate Stone Shares represented by the Stock Certificate(s) surrendered in exchange therefor is registeredtherefor, it no such issuance or payment shall be a condition of such exchange that made unless (i) the Stock Certificate(s) so surrendered have been properly endorsed or otherwise be in proper form for transfer and (ii) the Person requesting such exchange shall pay issuance has paid to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of payment of the Merger Consideration such issuance to a Person other than the stockholder owning the Book Entry Share transferred registered holder or Certificate surrendered, or shall establish to the reasonable Exchange Agent’s satisfaction of the Paying Agent that such Tax tax has been paid or is not applicable. For purposes of this Agreement, “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including any governmental or regulatory authority or agency (a “Governmental Authority”).
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Healthtronics Surgical Services Inc), Merger Agreement (Prime Medical Services Inc /Tx/)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank Equiniti Trust Company, LLC (formerly known as American Stock Transfer and Trust Company) as the paying agent (or trust company or such other independent financial institution nationally recognized paying agent designated by Parent and approved in writing by the United States Company) (the “ “Paying Agent”) that is reasonably acceptable to the Company to act, among other things, act as paying agent for the Company’s stockholders who shall become entitled to receive the Per Share Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this AgreementConsideration. At or prior to the Effective Time, Parent shall deposit (deposit, or shall cause to be deposited) , with the Paying Agent, for Agent the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the aggregate Per Share Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Payment Fund”). In To the event extent such fund diminishes for any reason below the Consideration Fund shall be insufficient level required to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor make prompt payment of the aggregate Per Share Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)Consideration, Parent and the Surviving Corporation shall promptly deliverreplace or restore, or cause to be deliveredreplaced or restored, additional funds the shortfall in such fund so as to the Paying Agent in an amount ensure that is equal to the deficiency required it is, at all times, maintained at a level sufficient to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Payment Fund shall be invested by the Paying Agent as directed by ParentXxxxxx; provided, howeverthat (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of the aggregate Per Share Merger Consideration payable hereunder, and following any losses Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses, (ii) no such investment shall have maturities that any could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days days, or guaranteed by the United States by, and backed by the full faith and credit of of, the United States. Earnings on the Consideration Fund in excess Any and all interest or other amounts earned with respect to such funds shall become part of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent Payment Fund and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, to the Surviving Corporation on the earlier of twelve (12) months after the Effective Time or the full payment of the aggregate Per Share Merger Consideration. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of shares of Company Common Stock and the payment of the Per Share Merger Consideration in respect of such shares. Promptly after the Effective Time, and in any event no later than three (3) Business Days after the Effective Time, Parent shall send, or shall cause the Paying Agent from promptly making to send, to each record holder of shares of Company Common Stock immediately prior to the payments required by this Article IIIEffective Time whose shares were converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, and following any losses from any such investmentrisk of loss and title shall pass, Parent shall promptly provide additional cash funds only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Paying Agent for use in such exchange).
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Per Share Merger Consideration shall be entitled to receive the Per Share Merger Consideration in respect of each share of Company Common Stock represented by a Certificate, promptly, upon (i) surrender to the Paying Agent of a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Paying Agent, or (ii) in the case of a book-entry transfer of shares of Company Common Stock, receipt of a customary “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request), and, in each case, delivery to the Paying Agent of such other documents as may reasonably be requested by the Paying Agent. Until so surrendered or transferred, each such Certificate shall represent after the Effective Time for all purposes only the right to receive such Per Share Merger Consideration. No interest shall be paid or accrued for the benefit of any holder of Company Common Stock on any amount payable upon the Company’s stockholders at surrender or transfer of any Certificate.
(c) If any portion of the Effective Time Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the amount surrendered Certificate is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall pay to the Paying Agent any transfer or other Tax required as a result of such losses payment to a Person other than the registered holder of such Certificate or establish to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part satisfaction of the Consideration FundPaying Agent that such Tax has been paid or is not applicable.
(d) At All Per Share Merger Consideration paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to on the Effective Timestock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Entry Shares are presented to Paying Agent or the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Per Share Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders one Common Stock on the date that is twelve (112) year months after the Effective Time shallClosing Date shall be delivered to Parent or the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Per Share Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to the Surviving Corporation as general creditors thereof for payment of the Per Share Merger Consideration, without interest. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by applicable Law, be delivered to the property of Parent or its designee, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding anything in this Agreement to the contrary, none of the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoingCorporation, neither Parent, the Paying Agent nor or any party hereto other Person shall be liable to any Person in respect former holder of cash from the Consideration Fund Company Common Stock or any Company Equity Awards for any amount properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofLaws.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Darden Restaurants Inc), Merger Agreement (Chuy's Holdings, Inc.)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Paying Agent”) for the purpose of paying the Merger Consideration as provided in Section 1.2(a) and Section 1.2(b). Promptly after the Effective Time, Parent shall deposit with and make available to (or shall cause to be depositeddeposited with and made available to) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of Agent cash sufficient to pay the Merger full Closing Cash Consideration payable pursuant to this Article III in respect of shares of Company Common Stock and Company Preferred Stock, but not any Closing Cash Consideration in respect of any Excluded Shares and Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, and the Company RSU Cash Consideration (such cash shall be referred to amount deposited in this Agreement as cash, the “Consideration Exchange Fund”). In If, for any reason (including losses) the event the Consideration Exchange Fund shall be insufficient is inadequate to pay the Merger Closing Cash Consideration (including with in respect to of the shares of Company Common Stock held by stockholders who did not vote and Company Preferred Stock (excluding any Closing Cash Consideration in favor respect of any Excluded Shares and Dissenting Shares as of the Merger but who did not exerciseEffective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, or who shall have effectively withdrawn or lost, their rights to appraisal of such the Company Common Stock under the DGCLRSU Cash Consideration), Parent shall take all steps necessary to promptly deliver, or cause to be delivered, additional funds deposit with and make available to the Paying Agent additional cash sufficient to pay all such amounts, and Parent and the Surviving Corporation shall in an amount that is equal any event be liable for the timely payment thereof. All cash deposited with the Paying Agent shall only be used for the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Effective Time. Any income from investment of the Exchange Fund will be payable to Parent or the deficiency required to make such paymentsSurviving Corporation, as Parent directs.
(b) Promptly after the Effective Time (and but in any no event within five (5) later than two Business Days after the Effective Time), Parent shall cause the Paying Agent to mail send to each stockholder whose holder of record of a certificate (the “Certificate”) which immediately prior to the Effective Time represented shares were converted into of Company Common Stock at the right to receive Effective Time (other than the Company, Parent, Merger Consideration pursuant to Section 3.1: Sub or any Subsidiary of the Company or Parent), (i) a notice advising such holder of the effectiveness of the Merger, (ii) a letter of transmittal, in customary formform and substance reasonably acceptable to the Company, that and instructions for use in such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares shares of Company Common Stock to the Paying Agent Agent) and (iiiii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares Certificate in exchange for payment of the Merger Consideration.
(c) With respect to shares of Company Common Stock held in book-entry form (“Book-Entry Shares”), the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent shall cooperate to, and prepared prior Parent shall cause the Paying Agent to, (i) deliver to DTC or its nominees, or to holders of Book-Entry Shares, in each case to the Closing. extent applicable or required, any notice with respect to the effectiveness of the Merger and any instructions for surrendering Book-Entry Shares and (ii) establish procedures with the Paying Agent and DTC to ensure that the Paying Agent will transmit to DTC or its nominees as soon as practicable after the Effective Time, upon the surrender of shares of Company Common Stock held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures, the Merger Consideration payable for each such Book-Entry Share.
(d) Upon surrender of a Certificate for cancelation (together with the applicable letter of transmittal, duly executed and properly completed) to, or upon receipt of an “agent’s message” by in customary form (or such other evidence of transfer, if any, as the Paying Agent may reasonably request) in connection with the transfer respect of a Book Book-Entry Share or surrender of a Certificate for cancellation to by, as the case may be, the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with Agent or such other documents agent or agents as may be required pursuant to such instructionsappointed by Pxxxxx, the holder of such Book Certificate or Book-Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, therefor the Merger Consideration for each Share formerly represented by such Certificate or Book-Entry Share, and the Certificate or Book-Entry Share so surrendered shall be cancelled.
(e) Notwithstanding anything to the contrary contained herein, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the provisions CVR Agreement and no portion of this Article IIIthe Merger Consideration relating to the CVRs will be paid unless and until it is required to be paid pursuant to the CVR Agreement. Until the Merger Consideration in respect of a given share of Company Common Stock has been paid, and such share of Company Common Stock shall represent after the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelledEffective Time for all purposes only the right to receive such Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. shares of Company Common Stock.
(f) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share a transferred or Certificate surrendered in exchange therefor share of Company Common Stock is registered, it shall be a condition to such payment that (i) such share of such exchange that Company Common Stock shall be properly endorsed or be otherwise in proper form and (ii) the Person requesting such exchange payment shall pay in advance to the Paying Agent any transfer or other similar Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such share of Company Common Stock or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicablepayable.
(cg) The cash in Upon the Consideration Fund Effective Time, the transfer books of the Company shall be invested by closed and thereafter there shall be no further registration of transfers of shares of Company Common Stock. If, after the Effective Time, shares of Company Common Stock are presented to the Surviving Corporation or the Paying Agent, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article I.
(h) Any portion of the Closing Cash Consideration made available to the Paying Agent pursuant to Section 1.3(a) that remains unclaimed by the holders of shares of Company Common Stock twelve (12) months after the Effective Time and any portion of any amounts payable in respect of the CVRs and made available to the Rights Agent that remains unclaimed by the holders of shares of Company Common Stock twelve (12) months after deposit with the Rights Agent, in each case shall be returned to Parent, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 1.3 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration, in respect of such shares without any interest thereon. Notwithstanding the foregoing, none of Parent, the Surviving Corporation or the Paying Agent shall be liable to any holder of shares of Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(i) The agreement with the Paying Agent shall provide that the Paying Agent shall invest any cash included in the Exchange Fund as directed by ParentParent or, after the Effective Time, the Surviving Corporation; providedprovided that (i) no such investment (including any losses thereon) shall relieve Parent or the Paying Agent from making the payments required by this Article I, however, (ii) no such investment shall have maturities that any could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days America or guaranteed by the United States and backed of America, in commercial paper obligations rated P-1 or A-1 or better by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Financial Services LLC, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $50 billion, or in money market funds having a rating in the full faith and highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the United Statesforegoing. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation Any interest or the Paying Agent from promptly making the payments required income produced by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds investments will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented payable to the Surviving Corporation or Parent, as directed by Pxxxxx. To the extent (A) there are any losses with respect to any investments of the Exchange Fund; (B) the Exchange Fund diminishes for any reason below the level required for the Paying Agent to promptly pay the cash amounts contemplated by Section 1.2; or (C) all or any portion of the Exchange Fund is unavailable for Parent (or the Paying Agent on behalf of Parent) to promptly pay the cash amounts contemplated by Section 1.2 for any reason, they Parent shall, or shall be cancelled cause the Surviving Corporation to, promptly replace or restore the amount of cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times fully available for distribution and exchanged maintained at a level sufficient for the Merger Consideration pursuant Paying Agent to this Article III, except as otherwise provided make the payments contemplated by LawSection 1.2.
(ej) Any portion of the Closing Cash Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, made available to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered any Dissenting Shares shall be returned to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyedParent, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIdemand.
Appears in 2 contracts
Samples: Merger Agreement (electroCore, Inc.), Merger Agreement (NeuroMetrix, Inc.)
Surrender and Payment. (a) Prior to the Effective Time, Parent and Merger Sub shall appoint Computershare Trust Company, N.A. or such other paying agent as designated by Parent and Merger Sub and reasonably acceptable to the Company from time to time (the “Paying Agent”) to act as the agent for the purpose of paying the Merger Consideration in exchange for: (i) the Certificates, or (ii) Book-Entry Shares. At or prior to the Closing, Parent shall appoint a United States bank deposit, or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable shall cause to the Company to actbe deposited, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth cash in an amount sufficient to pay the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (or cause aggregate Merger Consideration required to be deposited) with paid pursuant to this Article IV (such cash being hereinafter referred to as the Paying Agent, for “Exchange Fund”). If the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient Exchange Fund is inadequate to pay the Merger Consideration that is payable in respect of all of the Common Shares represented by the Certificates and the Book-Entry Shares for any reason, Parent shall take all steps necessary to promptly (and in any case, within five (5) Business Days) deposit additional cash with the Paying Agent sufficient to pay all Merger Consideration required to be paid pursuant to this Article III (such cash IV, and Parent shall in any event be referred to liable for the payment thereof. Parent shall pay all charges and expenses, including those of the Paying Agent, incurred in this Agreement as connection with the “Consideration Fund”)exchange of Common Shares for the Merger Consideration. In the event the Consideration The Exchange Fund shall not be insufficient used for any purpose other than to pay the Merger Consideration (including with that is payable in respect to Company Common Stock held by stockholders who did not vote in favor of all of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under Shares represented by the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to Certificates and the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Book-Entry Shares. Promptly after the Effective Time (and in any event case, within five (5) Business Days after the Effective TimeDays), Parent shall send, or shall cause the Paying Agent to mail send, to each stockholder whose shares were converted into record holder of Common Shares at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time, a letter of transmittal, transmittal in customary form, that such form as Parent and the Company shall reasonably agree (the “Letter of Transmittal”) and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits upon delivery of loss in lieu thereof) or an “agent’s message” regarding the book-entry transfer of the Book Book-Entry Shares to the Paying Agent) for use in such exchange.
(b) Upon (i) surrender to the Paying Agent of a Certificate (or affidavit of loss in lieu of the Certificate as provided in Section 4.5), together with a duly completed and validly executed Letter of Transmittal and such other documents as may reasonably be requested by the Paying Agent, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the (or such other evidence, if any, of transfer of a Book Entry Share or surrender of a Certificate for cancellation to as the Paying Agent, Agent may reasonably request) in each the case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructionsBook-Entry Shares, the holder of such Book Certificate or holder of record of such Book-Entry Share or Certificate Shares, as the case may be, shall be entitled to receive in exchange therefor, subject a cash amount (after giving effect to any required withholding Tax withholdings as provided in Section 4.4) equal to the product of Taxes(i) the Offer Price and (ii) the number of Common Shares represented by such Certificate (or affidavit of loss in lieu of the Certificate as provided in Section 4.5) or Book-Entry Shares, as the Merger Consideration case may be. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 4.3, each such Certificate or Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive the Offer Price or the right to demand to be paid the “fair value” of the Common Shares represented thereby as contemplated by Section 4.3. No interest shall be paid or will accrue on any cash payable to holders of Certificates or Book-Entry Shares pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. IV.
(c) If any of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after All Merger Consideration payable upon the Effective Time, there surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be no transfers on the share transfer books deemed to have been paid in full satisfaction of the Company of the shares of Company Common Stock that were outstanding immediately prior all rights pertaining to the Effective Time. If, after the Effective Time, Certificates Common Shares formerly represented by such Certificate or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by LawShares.
(e) Any portion of the Consideration Exchange Fund (including made available to the proceeds Paying Agent in respect of any investments thereofDissenting Shares, if any, shall be returned to Parent, upon demand.
(f) that Any portion of the Exchange Fund deposited with the Paying Agent which remains unclaimed by unpaid to the former Company stockholders one holders of Common Shares for twelve (112) year months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry upon demand, and any holders of Common Shares who has have not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares IV shall thereafter look only to Parent for payment of their claim for the allocable Merger Consideration in respect thereofConsideration, without any interest thereon but subject to any applicable withholdings.
(fg) Notwithstanding None of Parent, the foregoing, neither Company or the Paying Agent nor any party hereto Surviving Corporation shall be liable to any Person in respect holder of cash from Common Shares for any portion of the Merger Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Applicable Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(gh) If any Certificate shall have been lost, stolen No dividends or destroyed, upon other distributions with respect to capital stock of the making of an affidavit of that fact (which affidavit Company with a record date on or after the Effective Time shall be in a form reasonably satisfactory paid to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect holder of such Certificate pursuant to this Article IIIany unsurrendered Certificates.
Appears in 2 contracts
Samples: Merger Agreement (Everest Merger Sub, Inc.), Merger Agreement (Sport Chalet Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent and Company shall jointly appoint a United States bank or trust company or other independent financial institution in the United States depositary (the “ Paying Agent”"Depositary") that is reasonably acceptable for the purpose of exchanging certificates representing shares of Company Common Stock for the Cash Consideration and the Split-Off Consideration. The Depositary shall be Bank of America National Trust and Savings Association. Parent will pay to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or Depositary immediately prior to the Effective Time, Parent the Cash Consideration, and the Company shall cause A&S to deposit with the Depositary the Split-Off Consideration (or cause comprised of shares of A&S Common Stock and cash sufficient to pay any fractional shares), to be deposited) with the Paying Agent, for the account and benefit paid in respect of the former holders shares of Company Common Stock. For purposes of determining the Cash Consideration and the Split-Off Consideration to be so paid, an amount Parent and Company shall assume that no holder of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to shares of Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights will perfect his right to appraisal of such his shares of Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Stock. Promptly after the Effective Time Time, Parent will send, or will cause the Depositary to send, but in no event later than three (and in any event within five (53) Business Days business days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose holder of shares were converted into of Company Common Stock at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits certificates representing shares of loss in lieu thereof) or transfer of the Book Entry Shares Company Common Stock to the Paying Agent Depositary) and (ii) instructions for use in effecting the surrender of the Certificates or transfer shares of the Book Entry Shares Company Common Stock in exchange for payment of the Merger Cash Consideration and Split-Off Consideration, and no interest shall accrue or be paid on any Cash Consideration payable upon the form surrender of certificates.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Cash Consideration and substance Split-Off Consideration, upon surrender to the Depositary of which a certificate or certificates properly representing such shares of Company Common Stock, together with a properly completed letter of transmittal and instructions shall be as reasonably agreed to by the covering such shares of Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCommon Stock, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall will be entitled to receive the Cash Consideration and Split-Off Consideration payable in respect of such shares of Company Common Stock less any amounts required to be withheld under applicable federal, state, local or foreign income tax regulations. Until so surrendered, each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive such Cash Consideration and Split-Off Consideration. No certificates representing fractional shares of A&S Common Stock shall be issued upon the surrender for exchange thereforof shares of Company Common Stock, subject and such fractional share interests will not entitle the owner thereof to vote or to any required withholding other rights as a shareholder of Taxes, A&S. Each holder of shares of Company Common Stock who would otherwise be entitled to receive a fractional share of A&S Common Stock shall receive from the Merger Consideration pursuant Depositary an amount in cash (the "Fractional Share Payment") equal to the provisions product obtained by multiplying (i) the fractional share interest to which such holder (after taking into account all shares of this Article III, Company Common Stock held at the Effective Time by such holder) would otherwise be entitled by (ii) the mean between the high and low trading prices of A&S Common Stock on the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders first full day of Book Entry Shares or Certificates trading following the Closing (as defined in connection with, or accrued on, Section 3.7 below) (the Merger Consideration. "Trading Value").
(c) If any Merger portion of the Cash Consideration and Split-Off Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company registered holder of the shares of Company Common Stock represented by the certificate or certificates surrendered in exchange therefor, it shall be a condition to such payment that were outstanding immediately prior the certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Effective Time. If, after Depositary any transfer or other taxes required as a result of such payment to a Person other than the Effective Time, Certificates registered holder of such shares of Company Common Stock or Book Entry Shares are presented establish to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion satisfaction of the Consideration Fund (Depositary that such tax has been paid or is not payable. For purposes of this Merger Agreement, "Person" means an individual, a corporation, limited liability company, a partnership, an association, a trust or any other entity or organization, including the proceeds of a government or political subdivision or any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent agency or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect instrumentality thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Pentair Inc), Merger Agreement (Essef Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ “Paying and Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent and exchange agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying and Exchange Agent agreement with the Paying and Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying and Exchange Agent consistent with the terms of this Agreement. At or prior to Promptly after the Effective TimeTime on the Closing Date, Parent shall deposit (or cause to be deposited) with the Paying and Exchange Agent, for the account and benefit of the former holders of Company Common Stock, the aggregate Cash Consideration payable and the aggregate number of shares of Parent Common Stock issuable pursuant to this Article IV, in an amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant required to be paid by the Paying and Exchange Agent in accordance with this Article III Agreement (such cash and Parent Common Stock shall be referred to in this Agreement as the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 4.1(d) and any dividends or distributions which holders of Company Common Stock may be entitled pursuant to Section 4.2(h). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds and shares of Parent Common Stock to the Paying and Exchange Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying and Exchange Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.14.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying and Exchange Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying and Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying and Exchange Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIIIV, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration, any cash paid in lieu of the issuance of any fractional shares or dividends or distributions payable with respect to Share Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying and Exchange Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying and Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying and Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying and Exchange Agent from promptly making the payments required by this Article IIIIV, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying and Exchange Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying and Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article IIIIV, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III IV with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying and Exchange Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III IV with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying and Exchange Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying and Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIIV.
(h) Whenever a dividend or other distribution is declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, and no payment in lieu of fractional shares pursuant to Section 4.1(d) will be paid to the holders of any unsurrendered Certificates or Book Entry Shares with respect to Parent Common Stock represented thereby until the holders of record of such Certificates or Book Entry Shares shall surrender such Certificates or Book Entry Shares. Subject to applicable Law, following surrender of any such Certificates or Book Entry Shares, the Paying and Exchange Agent shall deliver to the holders thereof, without interest (i) promptly after such surrender, the Cash Consideration payable and the Share Consideration payable in exchange therefor, in each case pursuant to Section 4.1(a), along with payment in lieu of fractional shares pursuant to Section 4.1(d) and the amount of any such dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such Parent Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States an agent (the “ Paying "Exchange Agent”") that is reasonably acceptable to for the Company to act, among other things, as paying agent purpose of exchanging certificates representing Shares for the Merger and to deliver the Merger Consideration to former stockholders of the CompanyConsideration. The Company and Parent shall enter into a Paying Agent agreement with cause Merger Co. to make available to the Paying Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or immediately prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to exchanged or paid in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exerciseShares. The Surviving Corporation shall send, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Exchange Agent to mail send, to each stockholder whose shares were converted into holder of Shares, at the right same time that the PPM is sent or given to receive Merger Consideration pursuant to Section 3.1: such holders, (i) a letter of transmittal, transmittal for use in customary form, that such exchange (which shall be in form and substance reasonably satisfactory to the Company and shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry certificates representing Shares to the Paying Agent Exchange Agent) and (ii) instructions for use in effecting to effect the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment the Merger Consideration.
(b) Each holder of Shares that have been converted into a right to receive the Merger Consideration, upon surrender to the form and substance Exchange Agent of which a Certificate or Certificates representing such Shares, together with a properly completed letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agentcovering such Shares, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive the Merger Consideration payable in respect of such Shares. The holder of such Certificate, upon its exchange for Parent Common Shares, shall also receive any dividends or other distributions to which such holder is entitled pursuant to Section 2.03(c). Certificates surrendered shall forthwith be cancelled following the Effective Time. Until so surrendered, each such Certificate, following the Effective Time, shall represent for all purposes only the right to receive such Merger Consideration.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the Parent Common Shares such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.03. Subject to applicable law, following surrender of any such Certificate, there shall be paid to the record holder of the Certificates representing whole Parent Common Shares issued in exchange therefor, subject to any required withholding without interest, at the time of Taxessuch surrender, the Merger Consideration pursuant amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. such whole Parent Common Shares.
(d) If any Merger Consideration Certificate for Parent Common Shares is to be paid to issued in a Person name other than that in which the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange to the issuance therefor that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall pay have paid to the Paying Exchange Agent any transfer or other Taxes taxes required by reason of payment as a result of the Merger Consideration to issuance of a Person Certificate for Parent Common Shares in any name other than that of the stockholder owning the Book Entry Share transferred or Certificate surrenderedregistered holder of such Shares, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; providedpayable. For purposes of this Agreement, however"Person" means an individual, that a corporation, a limited liability company, a partnership, an association, a trust or any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days other entity or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parentorganization, the Surviving Corporation including a government or the Paying Agent from promptly making the payments required by this Article III, and following political subdivision or any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates agency or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect instrumentality thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Itc Deltacom Inc), Merger Agreement (Itc Deltacom Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent Acquirer shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is an agent reasonably acceptable to the Company to act, among other things, as paying agent (the "EXCHANGE AGENT") for the purpose of exchanging certificates representing Company Shares (the "CERTIFICATES") for the Merger and Consideration. Acquirer will make available to deliver the Exchange Agent, as needed, the Merger Consideration to former stockholders be paid in respect of the CompanyCompany Shares. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to Promptly after the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exerciseAcquirer will send, or who shall have effectively withdrawn or lostwill cause the Exchange Agent to send, their rights to appraisal each holder of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after record at the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) of Company Shares a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent) in such form as the Company and (ii) instructions Acquirer may reasonably agree, for use in effecting delivery of Company Shares to the surrender Exchange Agent.
(b) Each holder of the Certificates or transfer of the Book Entry Company Shares in exchange for payment of that have been converted into a right to receive the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant in respect of the Company Shares represented by such Certificate. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all purposes only the right to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to consideration provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law.I.
(e) Any portion of the Merger Consideration Fund (including made available to the proceeds of any investments thereofExchange Agent pursuant to Section 1.3(a) that remains unclaimed by the former holders of Company stockholders Shares one (1) year after the Effective Time shallshall be returned to Acquirer, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged such holder's Company Shares for the Merger Consideration in accordance with this Article III with respect Section 1.3 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent Acquirer for payment of their claim for the Merger Consideration in respect thereof.
(f) of such holder's Company Shares. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Acquirer shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered Company Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws.
(f) No dividends or other distributions with respect to Acquirer Common Stock issued in the Merger shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 1.3. If any Certificate Subject to the effect of applicable laws, following such surrender, there shall be paid, without interest, to the record holder of the Acquirer Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such Acquirer Common Stock with a record date after the Effective Time and a payment date on or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to surrender and not previously paid and (ii) at the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.appropriate payment
Appears in 2 contracts
Samples: Merger Agreement (Diamond Multimedia Systems Inc), Merger Agreement (Diamond Multimedia Systems Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States American Stock Transfer & Trust Company, LLC (the “ Paying “Exchange Agent”) that is for the purpose of exchanging for the Merger Consideration as promptly as practicable after the Effective Time (i) certificates representing Company Common Shares (the “Certificates”) or (ii) uncertificated Company Common Shares (the “Uncertificated Shares”). No later than ten (10) Business Days prior to the Effective Time, Parent shall enter into an agreement with the Exchange Agent in form and substance reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company Special Committee and Parent (the “Exchange Agent Agreement”) pursuant to which Parent shall enter into a Paying Agent agreement with appoint the Paying Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit Merger Sub (or cause Parent on behalf of Merger Sub) shall make available to the Exchange Agent the aggregate Merger Consideration to be deposited) with the Paying Agent, for the account and benefit paid in respect of the former shares represented by such Certificates and the Uncertificated Shares. Such funds may be invested by the Exchange Agent as directed by Xxxxxx; provided that (i) such funds shall only be invested in the manner provided in the Exchange Agent Agreement, (ii) no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common StockShares entitled to receive such consideration pursuant to Section 2.02(a), an amount of cash sufficient (iii) to the extent necessary to pay the Merger Consideration payable pursuant to this Article III Consideration, the Surviving Corporation (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor or Parent on behalf of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent Surviving Corporation) shall promptly deliver, or cause to be delivered, provided additional funds to the Paying Exchange Agent in an amount for the benefit of holders of Company Common Shares entitled to receive such consideration and (iv) no such investment shall have a maturity that is equal would reasonably be expected to prevent or delay payments to be made pursuant to this Agreement. Any net profit resulting from such investments or interest or income produced by such investments shall be payable to the deficiency required to make such payments.
(b) Promptly Surviving Corporation. As promptly as practicable after the Effective Time (and in any event within but no later than five (5) Business Days after the Effective Timethereafter), Parent shall cause the Paying Surviving Corporation to send, or shall cause the Exchange Agent to mail send, to each stockholder whose shares were converted into the right holder of Company Common Shares entitled to receive the Merger Consideration pursuant to Section 3.1: (i2.02(a) at the Effective Time a letter of transmittal, transmittal and instructions (which shall be in customary form, that a form reasonably acceptable to the Company and Parent and finalized prior to the Effective Time and which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Exchange Agent) for use in such exchange (the “Letter of Transmittal”).
(b) Each holder of Company Common Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate (or affidavit of loss, theft or destruction of such Certification pursuant to Section 2.06), together with a properly completed and validly executed Letter of Transmittal in accordance with the instructions thereto (and such other documents as may reasonably be requested by the Exchange Agent), or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration payable for each Company Common Share pursuant to the provisions of this Article III, and the Book Entry Share so transferred Section 2.02(a) represented by such Certificate or Certificate for each Uncertificated Share. Until so surrendered shall forthwith be cancelled. No interest will be paid or transferred, as the case may be, each such Certificate or Uncertificated Share shall, subject to holders of Book Entry Shares or Certificates in connection withSection 6.07, or accrued on, represent after the Effective Time for all purposes only the right to receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it as a condition to such payment, (i) either such Certificate shall be a condition of properly endorsed or shall otherwise be in proper form for transfer or such exchange that Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonExchange Agent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by LawARTICLE 2.
(e) No interest shall be paid or will accrue on any cash payable to holders of Certificates or Uncertificated Shares pursuant to this ARTICLE 2. Any portion of the Merger Consideration Fund (including made available to the proceeds of any investments thereofExchange Agent pursuant to Section 2.03(a) that remains unclaimed by the former holders of Company stockholders one Common Shares twelve (112) year months after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged such Company Common Shares for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent and the Surviving Corporation for payment of their claim for the Merger Consideration in respect thereofof such Company Common Shares without any interest thereon.
(f) Notwithstanding None of Parent, Merger Sub, the foregoingCompany, neither the Paying Surviving Corporation, the Exchange Agent nor or any party hereto other Person shall be liable to any Person in respect of cash from any portion of the Merger Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaw. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by such holders immediately prior to the date on such time at which any Merger Consideration in respect thereof such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims of interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If From and after the Effective Time, holders of Company Common Shares shall cease to have any Certificate shall have been lostrights as Company shareholders, stolen except as provided herein or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIApplicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Washington Dennis R), Merger Agreement (Atlas Corp.)
Surrender and Payment. (a) Prior to the Closing Date, Parent, at its sole expense, shall appoint Computershare Trust Company N.A. or such other exchange agent as reasonably acceptable to the Company and Parent (the “Exchange Agent”) to act as the agent for the purpose of exchanging the Merger Consideration for: (i) the Certificates, or (ii) Book-Entry Shares. At or prior to the Closing, Parent shall appoint a United States bank deposit, or trust company or other independent financial institution shall cause to be deposited, with the Exchange Agent, for the benefit of the holders of Common Shares, sufficient funds to pay the aggregate Merger Consideration that is payable in respect of all of the United States Common Shares represented by the Certificates and the Book-Entry Shares (the “ Paying Agent“Payment Fund”) that in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is reasonably acceptable inadequate to the Company to act, among other things, as paying agent for the Merger and to deliver pay the Merger Consideration to former stockholders that is payable in respect of all of the Company. The Company Common Shares represented by the Certificates and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective TimeBook-Entry Shares, Parent shall deposit take all steps necessary to enable or cause the Surviving Corporation promptly (and in any case, within five (5) Business Days) to deposit, or cause to be deposited) , in trust additional cash with the Paying Agent, Exchange Agent sufficient to make all remaining payments required to be made under this Section 3.2 and Parent and the Surviving Corporation shall in any event be liable for the account and benefit payment thereof. Any net profit resulting from, or interest or income produced by, investments of the former holders Payment Fund by the Exchange Agent shall be payable to the Surviving Corporation or Parent, and any amounts in excess of Company the amounts payable pursuant to Section 3.1 shall be promptly returned to the Surviving Corporation or Parent, in each case as directed by Parent. The Surviving Corporation shall pay all charges and expenses of the Exchange Agent incurred in connection with the exchange of Common Stock, an amount of cash sufficient Shares for the Merger Consideration. The Payment Fund shall not be used for any purpose other than to pay the Merger Consideration that is payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of all of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under Shares represented by the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to Certificates and the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Book-Entry Shares. Promptly after the Effective Time (and in any event case, within five (5) Business Days after Days), the Surviving Corporation shall cause the Exchange Agent to send to each record holder of Common Shares at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, transmittal in a customary form, that form to be mutually agreed to by the Company and Parent (the “Letter of Transmittal”) and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting the surrender of the such Certificates or transfer of the Book Book-Entry Shares to the Exchange Agent in exchange for payment of the Merger Consideration.
(b) Each holder of Common Shares that have been converted into the right to receive the Merger Consideration shall, subject to Section 3.2(f), be entitled to receive the form Merger Consideration in respect of the Common Shares represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a duly completed and substance validly executed Letter of which letter of transmittal Transmittal and instructions shall such other documents as may reasonably be as reasonably agreed to requested by the Company and Parent and prepared prior to the Closing. Upon Exchange Agent, or (ii) receipt of an “agent’s message” by the Paying Exchange Agent or such other evidence, if any, of transfer as the Exchange Agent may reasonably request in connection with the transfer case of a Book Book-Entry Shares. After the Effective Time and until so surrendered or transferred, each such Certificate or Book-Entry Share or surrender of a Certificate for cancellation to shall represent only the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled right to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelledpayable in respect thereof. No interest will shall be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender or transfer of any Certificate or Book-Entry Share.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after All Merger Consideration paid upon the Effective Time, there surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be no transfers on deemed to have been paid in full satisfaction of all rights pertaining to the share Company Common Stock formerly represented by such Certificate or Book-Entry Shares. The stock transfer books of the Company shall be closed immediately upon the Effective Time and thereafter there shall be no further registration of the shares transfers of Company Common Stock that were outstanding immediately prior to on the Effective Timestock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Merger Consideration pursuant to in accordance with the procedures set forth in this Article III, except as otherwise provided by Law.
(e) Any portion of the Merger Consideration Fund (including made available to the proceeds Exchange Agent in respect of any investments thereofDissenting Shares shall be returned to Parent, upon demand.
(f) that Any portion of the Payment Fund which remains unclaimed by undistributed to the former holders of Company stockholders one Common Stock for six (16) year months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered to Parent or the Surviving Corporation for no consideration. Any upon demand, and any holders of Company stockholder owning Certificates or Book Entry Shares Common Stock who has have not theretofore complied with this Article III with respect shall (subject to such Certificates or Book Entry Shares shall the remainder of this Section 3.2(f)) thereafter look only to Parent the Surviving Corporation for payment of their claim for the Merger Consideration in respect thereof.
(f) Notwithstanding the foregoingConsideration, neither the Paying Agent nor without any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant interest thereon but subject to any applicable abandoned property, escheat or similar Lawwithholdings. If any Certificate Certificates or Book Book-Entry Share Shares shall not have been surrendered or transferred, respectively, exchanged prior to two years after the Effective Time (or immediately prior to such earlier date on which any the related Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, Authority) any such Merger Consideration in respect of such Certificate or Book Entry Shares thereof shall, to the extent permitted by applicable Applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder Person previously entitled thereto. None of such Certificate Parent, the Company or Book Entry Share who has not theretofore complied with this Article III with respect thereto the Surviving Corporation shall thereafter look only be liable to Parent any holder of Company Common Stock for payment of their claim for Merger Consideration in respect thereofany cash from the Payment Fund delivered to a public official pursuant to any abandoned property, escheat or similar Applicable Law.
(g) If any Certificate shall have been lost, stolen No dividends or destroyed, upon other distributions with respect to capital stock of the making of an affidavit of that fact (which affidavit Surviving Corporation with a record date on or after the Effective Time shall be in a form reasonably satisfactory paid to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect holder of such Certificate pursuant to this Article IIIany unsurrendered Certificates.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Electro Rent Corp), Merger Agreement (Electro Rent Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging shares of Company Common Stock for the Stock Consideration payable in respect thereof. As soon as reasonably practicable after the Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of one or more Certificates as of the Effective Time, whose shares of Company Common Stock were converted into the right to receive the Stock Consideration pursuant to Section 2.6 (Effect on Capital 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 Exchange Agent) in such form as Parent may specify subject to the Company’s reasonable approval prior to the Effective Time, including instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the Stock Consideration. At the Effective Time, Parent shall cause to be deposited) deposited with the Paying Exchange Agent, for the account and benefit of the former holders of shares of Company Common Stock, shares of Parent Common Stock (which shall be in non-certificated book-entry form) to be issued pursuant to Section 2.6 (Effect on Capital Stock) and an amount of cash in U.S. dollars sufficient to pay the Merger Consideration payable be paid pursuant to Section 3.5 (No Fractional Shares), payable to holders of the Book-Entry Shares or payable to the holders of Certificates upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof), in each case, pursuant to the provisions of Article II and this Article III (it being understood and agreed, for the avoidance of doubt, that Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement). With respect to any Dissenting Shares, Parent shall not be required to deposit or cause to be deposited with the Exchange Agent any funds or shares of Parent Common Stock. Following the Effective Time, Parent agrees to make available to the Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay any dividends pursuant to Section 3.1(f) (Dividends). All cash and book-entry shares representing Parent Common Stock deposited with the Exchange Agent shall be referred to in this Agreement as the “Consideration Exchange Fund”. The Exchange Agent shall deliver the Stock Consideration (and any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) or cash to be paid for dividends in accordance with Section 3.1(f)) out of the Exchange Fund. In the event the Consideration The Exchange Fund shall not be insufficient to pay used for any other purpose. The Exchange Agent shall invest any cash included in the Merger Consideration (including with respect to Company Common Stock held Exchange Fund as directed by stockholders who did not vote in favor of Parent. Any interest and other income resulting from such investments shall be the Merger but who did not exerciseproperty of, or who shall have effectively withdrawn or lostand paid to, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsParent.
(b) Promptly after the Effective Time (and in any event within five (5Each holder of one or more Certificate(s) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose representing shares were of Company Common Stock that have been converted into the right to receive the Merger Consideration pursuant Consideration, upon surrender to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery the Exchange Agent of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates Certificate(s) (or affidavits effective affidavit of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration), the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may reasonably be required pursuant to such instructionsby the Exchange Agent, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefortherefor (i) the number of whole shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, subject in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.6 (Effect on Capital Stock), (ii) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, without interest (less any required withholding Tax withholding). Until so surrendered, each such Certificate shall, after the Effective Time, represent for all purposes only the right to receive such (A) Merger Consideration, (B) cash in lieu of Taxesany fractional shares and (C) unpaid dividends. No holder of Book-Entry Shares shall be required to deliver a Certificate or completed letter of transmittal to the Exchange Agent to receive (1) the number of whole shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the Merger Consideration whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to the provisions Section 2.6 (Effect on Capital Stock), (2) if applicable, any cash to be paid in lieu of this Article IIIany fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelledany dividends in accordance with Section 3.1(f) (Dividends), in each case, without interest (less any required Tax withholding). No interest will shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or unpaid dividends payable to holders of Book Certificates or Book-Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicableShares.
(c) The cash With respect to Certificate(s), in the Consideration Fund shall event of a transfer of ownership of any Certificate that is not registered in the transfer books of the Company as of the Effective Time, (i) any Stock Consideration, (ii) if applicable, any cash to be invested paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, may be issued or paid to such a transferee if the Certificate is presented to the Exchange Agent, properly endorsed or otherwise in proper form for transfer, accompanied by the Paying Agent as directed by Parent; provided, however, all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable, in each case, in form and substance, reasonably satisfactory to the Exchange Agent. With respect to Book-Entry Shares, issuance or payment of (1) any Stock Consideration, (2) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, shall only be made to the Person in whose name such investments shall be Book-Entry Shares are registered in short-term obligations the stock transfer books of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit Company as of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration FundTime.
(d) At From and after the Effective Time, there shall be no further registration of transfers on of shares of Company Common Stock. From and after the share transfer books Effective Time, the holders of the Company of the Certificates representing shares of Company Common Stock that were outstanding immediately prior to the Effective TimeTime 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. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation Exchange Agent or the Paying Agent for any reasonParent, they shall be cancelled and exchanged for the Merger Consideration pursuant to consideration provided for, and in accordance with the procedures set forth, in Article II and this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders Common Stock one (1) year after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged his or her shares of Company Common Stock for the Merger Consideration in accordance with this Article III with respect Section 3.1 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment delivery of their claim for the Merger Consideration in respect thereof.
(f) of such holder’s shares of Company Common Stock. Notwithstanding the foregoing, neither Parent, Merger Sub, nor the Paying Agent nor any party hereto Company shall be liable to any Person holder of shares of Company Common Stock for any Merger Consideration, cash in respect lieu of cash from the Consideration Fund fractional shares or any unpaid dividends delivered to a public official any Governmental Entity pursuant to any applicable abandoned propertyproperty Laws. Any Merger Consideration, escheat cash in lieu of fractional shares or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, unpaid dividends remaining unclaimed by holders of shares of Company Common Stock immediately prior to the date on which any Merger Consideration in respect thereof such time as such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If any Certificate shall have been lost, stolen or destroyed, upon No dividends with respect to shares of Parent Common Stock issued in the making of an affidavit of that fact (which affidavit Merger shall be paid to the holder of any Certificates or Book-Entry Shares until such Certificates or Book-Entry Shares are surrendered or transferred, as applicable, as provided in a form reasonably satisfactory this Section 3.1. Following such surrender, subject to the effect of escheat or abandoned property (in accordance with Section 3.1(e)), Tax or other applicable Law, shall be paid, without interest, to the record holder of the shares of Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue Common Stock issued in exchange for therefor (i) at the time of such lostsurrender, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled all dividends payable in respect of such Certificate shares of Parent Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends payable with respect to such shares of Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends in respect of shares of Parent Common Stock, all shares of Parent Common Stock to be issued pursuant to this Article IIIthe Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Progenics Pharmaceuticals Inc), Agreement and Plan of Merger (Lantheus Holdings, Inc.)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent (the “Paying Agent”) for the purpose of exchanging for the Merger and Consideration (or, in the case of Company Stock Options, an amount based thereon) (i) certificates representing shares of Company Common Stock (the “Certificates”), (ii) subject to deliver Section 2.05, uncertificated shares of Company Common Stock (the Merger Consideration to former stockholders of the Company. The “Uncertificated Shares”) or (iii) Company and Parent shall enter into a Paying Agent agreement with the Paying AgentStock Options, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreementor Company Restricted Stock Units held by Non-Employee Holders. At or prior to the Effective Time, Parent shall deposit (deposit, or cause to be deposited) , with the Paying Agent, in trust for the account and benefit of the former holders of shares of Company Common Stock, cash in U.S. dollars in an amount of cash sufficient to pay the aggregate amount of the Merger Consideration payable pursuant (or, in the case of Company Stock Options, the aggregate amount based thereon) to this Article III be paid in respect of the Certificates, the Uncertificated Shares, and Company Stock Options, Company Stock Appreciation Rights, Company Performance Shares or Company Restricted Stock Units held by Non-Employee Holders (such cash shall be referred to in this Agreement as any funds deposited with the Paying Agent, the “Consideration Payment Fund”). In the event the Consideration The Payment Fund shall not be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) used for any other purpose. Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall send, or shall cause the Paying Agent to mail send, to each stockholder whose holder of shares were converted into of Company Common Stock or each Non-Employee Holder who holds Company Stock Options, Company Stock Appreciation Rights, Company Performance Shares or Company Restricted Stock Units at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time a letter of transmittal, transmittal and instructions in customary form, that form (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent and which shall include customary provisions with respect to delivery of an “agent’s message” with respect to shares of Company Common Stock held in book-entry form) for use in such exchange.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender Uncertificated Shares, the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for cancellation all purposes only the right to receive such Merger Consideration. Upon such surrender, Parent shall pay, or cause the Paying AgentAgent to pay from the Payment Fund, in the Merger Consideration payable to each case together with such letter holder pursuant to this Article 2. Each Non-Employee Holder of transmittal, duly executed and completed Company Stock Options that have been converted into the right to receive a cash amount in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate Section 2.05 shall be entitled to receive in exchange therefor, subject to any required withholding such cash amount upon delivery of Taxes, the Merger Consideration pursuant to the provisions a properly completed letter of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. transmittal.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeStock. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonAgent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund (including or, in the proceeds case of any investments thereofCompany Stock Options, an amount based thereon) deposited with the Paying Agent pursuant to Section 2.03(a) that remains unclaimed by the former holders of shares of Company stockholders one (1) year Common Stock or Non-Employee Holders twelve months after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged shares of Company Common Stock or Company Stock Options for the Merger Consideration (or, in the case of Company Stock Options, an amount based thereon) in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Common Stock or any Non-Employee Holder for any amounts properly paid to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Company Stock that, pursuant to Applicable Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofmade available to the Paying Agent pursuant to Section 2.03(a) to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(g) If The Paying Agent shall invest any Certificate cash in the Payment Fund as directed by Parent; provided that Parent shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, not direct the Paying Agent shall issue to invest any cash in exchange for the Payment Fund in any investment if such lostinvestment would, stolen or destroyed Certificate would reasonably be expected to, prevent or delay timely payment of the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIAgreement. Any interest and other income resulting from such investments shall be paid to Parent. In the event the Payment Fund shall be insufficient to pay the aggregate Merger Consideration (or, in the case of Company Stock Options, the aggregate amount based thereon) payable in connection with the Merger, Parent shall, or shall cause the Surviving Corporation to, promptly deposit additional funds with the Paying Agent in an amount which is equal to the deficiency in the amount required to make such payment.
Appears in 2 contracts
Samples: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Arthrocare Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an exchange agent reasonably acceptable to the Company (or cause the “Exchange Agent”) to be deposited) with act as the Paying Agent, agent for the account and benefit purpose of exchanging the former holders Merger Consideration for: (i) the Certificates, or (ii) book-entry shares that immediately prior to the Effective Time represented the shares of Company Common StockStock (the “Book-Entry Shares”). On and after the Effective Time, an amount of cash Parent shall deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to this Article III in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (such cash shall be referred to in this Agreement as the “Consideration Payment Fund”)) in amounts and at the times necessary for such payments. In If for any reason (including losses) the event the Consideration Payment Fund shall be insufficient is inadequate to pay the Merger Consideration (including with respect amounts to Company Common Stock held by stockholders who did not vote in favor which holders of the Merger but who did not exercise, or who shares shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock be entitled under the DGCLSection 3.01(b), Parent shall promptly deliver, take all steps necessary to enable or cause the Surviving Corporation promptly to be delivered, deposit in trust additional funds to cash with the Paying Exchange Agent in an amount that is equal to the deficiency required sufficient to make such payments.
(b) all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Common Stock at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of shares of Company Common Stock that have been converted into the surrender right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Certificates Company Common Stock represented by a Certificate or transfer Book-Entry Share upon (i) surrender to the Exchange Agent of the Book Entry Shares in exchange for payment of the Merger Considerationa Certificate, the form together with a duly completed and substance of which validly executed letter of transmittal and instructions shall such other documents as may reasonably be as reasonably agreed to requested by the Company and Parent and prepared prior to the Closing. Upon Exchange Agent, or (ii) receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of Book-Entry Shares. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such Certificate or Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of a Book any Certificate or Book-Entry Share or surrender Share. Upon payment of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article ARTICLE III, and the Book Entry Share so transferred each Certificate or Certificate Certificates so surrendered shall forthwith immediately be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to on the Effective Timestock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article ARTICLE III, except as otherwise provided by Law.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one holders of Shares six (16) year months after the Effective Time shallshall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, be delivered to the property of Parent free and clear of any claims or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment interest of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawpreviously entitled thereto. If any Certificate Certificates or Book Book-Entry Share shall Shares are not have been delivered, surrendered or transferred, respectivelyas applicable, in accordance with this Section 3.02 prior to the date on which any Merger Consideration in respect thereof amounts payable under this ARTICLE III would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable LawEntity, any such Merger Consideration in respect of such Certificate or Book Entry Shares amounts shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If any Certificate shall have been lost, stolen or destroyed, upon the making Any portion of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration made available to which such Person is entitled the Exchange Agent in respect of such Certificate pursuant any Dissenting Shares shall be returned to this Article IIIParent, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint a bank or trust company to act as disbursing agent (the “Disbursing Agent”) for the payment of Merger Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.06(b), Parent shall deposit (or cause to be deposited) deposited with the Paying Agent, for Disbursing Agent cash in an aggregate amount necessary to make the account and benefit of the former payments pursuant to Section 3.06(b) to holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III Shares (such cash shall be amounts being hereinafter referred to in this Agreement as the “Consideration Exchange Fund”). In The Disbursing Agent shall invest the event the Consideration Exchange Fund as directed by Parent; provided that such investments shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor i) direct obligations of the Merger but who did not exerciseUnited States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or who (iii) commercial paper rated the highest quality by either Xxxxx’x Investors Services, Inc. or Standard & Poor’s Corporation; provided further that no loss thereon or thereof shall have effectively withdrawn or lostaffect the amounts payable to holders of Shares pursuant to Section 3.06(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, their rights and any amounts in excess of the amounts payable under Section 3.06(b) shall be promptly paid to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsParent.
(b) Promptly after Merger Subsidiary shall instruct the Effective Time (and in any event within five (5) Business Days Disbursing Agent to mail promptly after the Effective Time, but in no event later than the fifth Business Day thereafter, to each person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the “Certificates”), Parent shall cause the Paying Agent to mail to each stockholder and whose shares Shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) 3.06(b), a form of letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Disbursing Agent) and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentDisbursing Agent for cancellation, in each case together with such letter of transmittal, transmittal duly executed and completed in accordance with the instructions thereto, and with such other documents as may be reasonably required pursuant to such instructionsby the Disbursing Agent, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefortherefor the Merger Consideration payable in respect of that Certificate, subject to less any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or such Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender of the Certificates.
(c) If any Merger Consideration payment is to be paid made to a Person person other than the stockholder person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall payment pay to the Paying Agent any transfer or other Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the stockholder owning registered holder of the Book Entry Share transferred Certificate surrendered or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax has been paid or is not applicable.
(cd) The cash Until surrendered in accordance with the Consideration Fund shall be invested provisions of this Section 3.07, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Shares held by the Paying Agent as directed by Parent; providedCompany and Dissenting Shares) shall represent for all purposes, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States from and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at after the Effective Time in Time, only the amount of such losses right to receive the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundapplicable Merger Consideration.
(de) At and after the Effective Time, there shall be no registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that Shares 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 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. The Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they such Certificates shall be cancelled and exchanged for represent the right to receive the Merger Consideration pursuant to as provided in this Article III, except as otherwise provided by Law. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(ef) Any portion of the Merger Consideration Fund (including made available to the proceeds of Disbursing Agent to pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand. At any investments thereof) that remains unclaimed by the former Company stockholders one (1) year time more than twelve months after the Effective Time shallTime, the Disbursing Agent shall upon demand of Parent deliver to it any funds which had been made available to the extent permitted Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by applicable Lawthe Disbursing Agent in respect of all such funds). Thereafter, be delivered holders of Certificates shall look only to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with (subject to the terms of this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoingAgreement, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or and other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior Laws) as general creditors thereof with respect to the date on which any Merger Consideration in respect thereof that may be payable, without interest, upon due surrender of the Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Lawgovernmental unit or agency, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder person previously entitled thereto. Notwithstanding the foregoing, none of such Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for any Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled delivered in respect of such Certificate of Shares to a public official pursuant to this Article IIIany abandoned property, escheat or other similar Law.
Appears in 2 contracts
Samples: Merger Agreement (Wiser Oil Co), Merger Agreement (Forest Oil Corp)
Surrender and Payment. (a) At or Parent shall appoint an agent (the “Exchange Agent”) reasonably acceptable to Company for the purpose of exchanging certificates which immediately prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States Effective Time evidenced shares of Company Common Stock (the “ Paying Agent“Certificates”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the applicable Merger Consideration pursuant to former stockholders of the an exchange agent agreement in form and substance reasonably satisfactory to Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to as promptly as practicable (and, in any event, within two (2) business days) after the Effective Time, Parent shall deposit (deposit, or shall cause to be deposited) , with the Paying Exchange Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to be exchanged or paid in accordance with this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exerciseII, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), and Parent shall promptly deliver, or cause make available from time to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly time after the Effective Time (as necessary, cash in an amount sufficient to pay any cash payable in lieu of fractional shares pursuant to Section 2.3 and in any event within five (5) Business Days after the Effective Timedividends or distributions to which holders of shares of Company Common Stock may be entitled pursuant to Section 2.2(c). The Surviving Corporation shall send, Parent or shall cause the Paying Exchange Agent to mail send, to each stockholder holder of record of shares of Company Common Stock immediately prior to the Effective Time whose shares were converted into the right to receive the applicable Merger Consideration pursuant to Section 3.1: 2.1, promptly after the Effective Time, (i) a letter of transmittal, transmittal for use in customary form, that such exchange (which shall be in form and substance reasonably satisfactory to Parent and Company and shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to in respect of the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent) and (ii) instructions for use in effecting to effect the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the applicable Merger Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c).
(b) Each holder of shares of Company Common Stock that have been converted into a right to receive the form applicable Merger Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.3 and substance any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c), upon surrender to the Exchange Agent of which a Certificate or Certificates, together with a properly completed letter of transmittal covering such shares and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as the Exchange Agent may be required pursuant to such instructionsreasonably require, the holder of such Book Entry Share or Certificate shall be entitled to receive the applicable Merger Consideration payable in respect of such shares of Company Common Stock. The holder of such Certificate, upon its delivery thereof to the Exchange Agent, shall also receive any dividends or other distributions to which such holder is entitled pursuant to Section 2.2(c) and cash payable in respect of any fractional shares pursuant to Section 2.3. Certificates surrendered shall forthwith be canceled as of the Effective Time. Until so surrendered, each such Certificate, following the Effective Time, shall represent for all purposes only the right to receive the applicable Merger Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c). No interest shall be paid or accrued for the benefit of holders of the Certificates on cash amounts payable upon the surrender of such Certificates pursuant to this Section 2.2.
(c) Whenever a dividend or other distribution is declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all shares of Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the Parent Common Stock such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.2. Subject to applicable law, following surrender of any such Certificate, there shall be paid to the record holder of the certificates representing Parent Common Stock issued in exchange therefor, subject to any required withholding without interest, at the time of Taxessuch surrender, the Merger Consideration pursuant amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such Parent Common Stock.
(d) If a transfer of ownership of shares of Company Common Stock is not registered in the provisions stock transfer books or ledger of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection withCompany, or accrued on, if any certificate for the Merger Consideration. If any applicable Merger Consideration is to be paid to issued in a Person name other than that in which the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange to the issuance thereof that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall pay have paid to the Paying Exchange Agent any transfer or other Taxes taxes required by reason of payment as a result of the Merger Consideration to issuance of a Person certificate for Parent Common Stock in any name other than that of the stockholder owning the Book Entry Share transferred or Certificate surrenderedregistered holder of such shares of Company Common Stock, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; providedpayable. For purposes of this Agreement, however“Person” means an individual, that a corporation, a limited liability company, a partnership, an association, a trust or any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days other entity or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parentorganization, the Surviving Corporation including a government or the Paying Agent from promptly making the payments required by this Article III, and following political subdivision or any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates agency or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect instrumentality thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (New Motion, Inc.), Merger Agreement (Traffix Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint a paying agent reasonably acceptable to the Company (the “Paying Agent”) to act as the agent for the purpose of exchanging for the Merger Consideration for: (i) the Certificates, or (ii) book-entry shares which immediately prior to the Effective Time represented the shares of Company Common Stock (the “Book-Entry Shares”). On and after the Effective Time, Parent shall deposit, or cause the Surviving Corporation to be deposited) deposit, with the Paying Agent, for sufficient funds to pay the account and benefit aggregate Merger Consideration that is payable in respect of all of the former holders shares of Company Common Stock, an amount of cash sufficient Stock represented by the Certificates and the Book-Entry Shares (the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the Merger Consideration payable pursuant amounts to this Article III (such cash which holders of shares shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock entitled under the DGCLSection 2.01(b), Parent shall promptly deliver, take all steps necessary to enable or cause the Surviving Corporation promptly to be delivered, deposit in trust additional funds to cash with the Paying Agent in an amount that is equal to the deficiency required sufficient to make such payments.
(b) all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of the shares of Company Common Stock for the Merger Consideration. Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall send, or shall cause the Paying Agent to mail send, to each stockholder whose record holder of shares were converted into of Company Common Stock at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time, a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent) for use in such exchange. Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs prior to 11:30 a.m. Eastern Standard Time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of shares of Company Common Stock held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration (such amount, the “DTC Payment”), and (ii) instructions for use if the Closing occurs after 11:30 a.m. Eastern Standard Time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the first Business Day after the Closing Date an amount in effecting cash in immediately available funds equal to the surrender DTC Payment.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Certificates Company Common Stock represented by a Certificate or transfer Book-Entry Share upon (i) surrender to the Paying Agent of the Book Entry Shares in exchange for payment of the Merger Considerationa Certificate, the form together with a duly completed and substance of which validly executed letter of transmittal and instructions shall such other documents as may reasonably be as reasonably agreed to requested by the Company and Parent and prepared prior to the Closing. Upon Paying Agent, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of Book-Entry Shares. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 2.03, each such Certificate or Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of a Book any Certificate or Book-Entry Share or surrender Share. Upon payment of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIIII, and the Book Entry Share so transferred each Certificate or Certificate Certificates so surrendered shall forthwith immediately be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to on the Effective Timestock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by LawII.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders one Common Stock six (16) year months after the Effective Time shallshall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, be delivered to the property of Parent free and clear of any claims or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment interest of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(f) Notwithstanding Any portion of the foregoing, neither Merger Consideration made available to the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered any Dissenting Shares shall be returned to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyedParent, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIdemand.
Appears in 2 contracts
Samples: Merger Agreement (Access to Money, Inc.), Merger Agreement (Cardtronics Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent Merger Sub shall appoint a United States enter into an agreement with the Company’s transfer agent or another bank or trust company or other independent financial institution mutually acceptable to Parent and the Company to act as paying agent in connection with the United States Merger (the “ “Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver receive the Merger Consideration to former which stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of become entitled pursuant to this AgreementArticle II. At or prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, Agent cash in an amount of cash sufficient to pay the Merger Consideration payable make all payments pursuant to this Article III II owed in respect of Shares represented by Certificates or Book-Entry Shares issued and outstanding immediately prior to the Effective Time (such cash shall be being hereinafter referred to in this Agreement as the “Consideration Payment Fund”). In the event the Consideration The Payment Fund shall not be insufficient used for any purpose other than to fund payments due pursuant to this Article II, except as provided in this Agreement. The Surviving Corporation shall pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor all charges and expenses of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to connection with the deficiency required to make such paymentsexchange of Shares for the Merger Consideration contemplated by this Article II.
(b) Promptly after the Effective Time (and in any event within five (5) not later than the fifth Business Days after Day following the Effective Time), Parent the Surviving Corporation shall cause direct the Paying Agent to mail to each stockholder whose shares holder of record of an outstanding certificate or outstanding certificates (“Certificates”), and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1: 2.1(a), (i) a form of letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Book-Entry Shares, as applicable, Shares held by such Person shall pass, only upon (x) adherence to the procedures set forth in the letter of transmittal and (y) in the case of Shares represented by Certificates, only upon proper delivery of the such Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Agent, and shall be in such form and have such other provisions as Parent and the Company may reasonably agree and shall be prepared prior to Closing) and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book and Book-Entry Shares in exchange for payment of the Merger Consideration, the form and substance Consideration payable with respect thereto pursuant to Section 2.1(a). Surrender of which letter of transmittal and instructions any Book-Entry Shares shall be as reasonably agreed effected in accordance with the Paying Agent’s customary procedures with respect to securities represented by the Company and Parent and prepared prior to the Closingbook entry. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation or Book-Entry Share to the Paying Agent, in each case together with such letter of transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and with such other documents as may reasonably be required pursuant to such instructionsby the Paying Agent, the holder of such Book Certificate or Book-Entry Share or Certificate shall be entitled to receive in exchange therefor, therefor the Merger Consideration for each Share formerly represented by such Certificate or each Book-Entry Share so surrendered (subject to deduction for any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIITax), and the Book Entry Share so transferred or Certificate Certificate, if any, so surrendered shall forthwith be cancelled. No interest will be paid to or accrued for the benefit of holders of Book Certificates or Book-Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. Consideration payable in respect of Certificates or Book-Entry Shares.
(c) If any payment of the Merger Consideration is to be paid made to a Person other than the stockholder Person in whose name the Book surrendered Certificate or Book-Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that (i) the Person requesting such exchange payment present proper evidence of transfer and, if applicable, the surrendered Certificate shall pay be properly endorsed and otherwise in proper form for transfer or, in the case of Book-Entry Shares, the Person in whose name such Book-Entry Shares are registered shall have delivered to the Paying Agent instruments of transfer in such form as the Paying Agent may require in accordance with its customary procedures for the transfer for securities represented by book entry and (ii) the Person requesting such payment shall have paid any transfer or and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Certificate or Book-Entry Share transferred or Certificate surrendered, surrendered or shall establish have established to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax either has been paid or is not applicable.
(cd) The cash in the Consideration Fund Until surrendered as contemplated by this Section 2.3, each Certificate or Book-Entry Share shall be invested deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 2.1(a), without any interest thereon.
(e) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. From and after the Effective Time, the holders of Certificates or Book-Entry Shares that evidenced ownership of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares other than the right to receive the applicable Merger Consideration, except as otherwise provided by applicable Law. Subject to the penultimate sentence of Section 2.3(g), if, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer (or for any other reason) or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be cancelled and exchanged as provided in this Article II.
(f) The Paying Agent shall invest any cash included in the Payment Fund as directed by Parent; provided, however, that any investment of such investments cash shall in all events be in short-term obligations of the United States of America with maturities of no more than thirty (30) 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United StatesStates of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. Earnings on If for any reason (including investment losses) the Consideration cash in the Payment Fund in excess is insufficient to fully satisfy all of the amounts payable payment obligations to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or made in cash by the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investmenthereunder (but subject to Section 2.4), Parent shall promptly provide additional deposit cash funds into the Payment Fund in an amount which is equal to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time deficiency in the amount of cash required to fully satisfy such losses to cash payment obligations. Any interest and other income resulting from such investments shall be payable to, and shall be the extent the funds in the Consideration Fund are insufficient for such purposesproperty of, which additional funds will be deemed to be part of the Consideration FundParent.
(dg) At and any time following the date that is six months after the Effective Time, there Parent shall be no transfers on entitled to require the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior Paying Agent to deliver to it any funds (including any interest received with respect thereto) which have been made available to the Effective Time. If, after the Effective Time, Paying Agent and which have not been disbursed to holders of Certificates or Book Book-Entry Shares are presented Shares, and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (subject to abandoned property, escheat or the Paying Agent for any reason, they shall be cancelled and exchanged for other similar laws) only as general unsecured creditors thereof with respect to the Merger Consideration pursuant payable upon due surrender of their Certificate or Book-Entry Shares. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds or become property of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shallGovernmental Entity shall become, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit affidavit, in form and substance reasonably acceptable to Parent, of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate Certificate to be lost, stolen or destroyeddestroyed and, if required by the Paying Agent, Parent or the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent shall issue will pay, in exchange for such lost, stolen or destroyed Certificate Certificate, the Merger Consideration to which such Person is entitled be paid in respect of the Shares formerly represented by such Certificate pursuant to Certificate, as contemplated by this Article IIIII.
Appears in 2 contracts
Samples: Merger Agreement (Newport Corp), Merger Agreement (MKS Instruments Inc)
Surrender and Payment. (a) At or prior to the Closingdate that is not less than two (2) months prior to the anticipated Effective Time, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is an exchange agent reasonably acceptable to the Company to act, among other things, as paying agent (the “Exchange Agent”) for the purpose of exchanging Certificates representing shares of Company Common Stock for the Merger Consideration in accordance with this Article IV. As promptly as reasonably practicable after the appointment of the Exchange Agent (but in any event within ten (10) Business Days after the date thereof), Parent and the Company will develop and finalize a letter of transmittal which shall be in customary form and have such other provisions as to deliver which Parent and the Company may reasonably agree (which letter of transmittal shall specify that the delivery of the Merger Consideration to former stockholders shall be effected, and risk of loss and title shall pass, only upon proper delivery of the CompanyCertificates to the Exchange Agent) (the “Letter of Transmittal”) for use in effecting delivery of shares of Company Common Stock to the Exchange Agent. The Company At or as promptly as reasonably practicable after finalizing such Letter of Transmittal (but in any event within ten (10) Business Days after the date thereof and at least ten (10) Business Days prior to the Effective Time), Parent shall enter into cause the Exchange Agent to send to each holder of record of shares of Company Common Stock on the date thereof, and from time to time thereafter as requested by Parent or the Company, a Paying Agent agreement Letter of Transmittal, together with instructions for effecting the Paying Agent, which agreement shall set forth surrender of Certificates in exchange for the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. Merger Consideration.
(b) At or prior to the Effective Time, Parent shall deposit (deposit, or shall cause to be deposited) , with the Paying Exchange Agent, in trust for the account and benefit of the former holders of shares of Company Common Stock (other than any Cancelled Shares), for exchange in accordance with this Article IV, evidence of book-entry shares (or certificates if requested by any such holder) representing the number of shares of Parent Common Stock and an amount of cash, in each case, sufficient to pay to the holders of shares of Company Common Stock the Per Share Cash Consideration and the Per Share Stock Consideration (such certificates or book-entry shares for shares of Parent Common Stock and cash in Dollars, together with cash in lieu of fractional shares in accordance with Section 4.3 and any dividends or distributions with respect to the shares of Parent Common Stock in accordance with Section 4.2(h), being hereinafter referred to as the “Exchange Fund”) payable pursuant to Section 4.1 in exchange for outstanding shares of Company Common Stock. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be paid pursuant to Section 4.1 out of the Exchange Fund. Parent agrees to make available to the Exchange Agent from time to time as needed, any cash in lieu of fractional shares of Parent Common Stock to be issued and paid in consideration therefor pursuant to Section 4.3 and any dividends or distributions to which such holder is entitled pursuant to Section 4.2(h) of this Agreement. Except as specified in this Section 4.2, the Exchange Fund shall not be used for any other purpose.
(c) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent on a daily basis in (i) short-term direct obligations of the United States of America with maturities of no more than thirty (30) days or (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest; provided, that no gain or loss thereon shall affect the amounts payable to the holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable Stock pursuant to this Article III IV. If for any reason (such including losses) the cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Exchange Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor fully satisfy all of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights payment obligations to appraisal of such Company Common Stock under be made in cash by the DGCL)Exchange Agent hereunder, Parent shall promptly deliver, or cause to be delivered, additional funds to deposit cash into the Paying Agent Exchange Fund in an amount that which is equal to the deficiency in the amount of cash required to make fully satisfy such paymentscash payment obligations.
(bd) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose Each holder of shares were of Company Common Stock that have been converted into the a right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such letter a properly completed and validly executed Letter of transmittal, duly executed and completed Transmittal in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall will be entitled to receive (i) one or more shares of Parent Common Stock (which shall be in exchange thereforuncertificated book-entry form unless a physical certificate is requested) representing, subject in the aggregate, the whole number of shares of Parent Common Stock that such holder has the right to any required withholding receive pursuant to Section 4.1 and (ii) a check (or, with respect to the Principal Stockholder and the holders of Taxesshares of Company Common Stock set forth on Section 4.2(d) of the Company Disclosure Letter, by wire transfer of immediately available Dollar funds) in an amount equal to the cash portion of the Merger Consideration that such holder has the right to receive pursuant to Section 4.1 and the other provisions of contained in this Article IIIIV, including cash payable in lieu of fractional shares in accordance with Section 4.3 and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelleddividends and other distributions in accordance with Section 4.2(h). No interest will shall be paid to holders of Book Entry Shares or Certificates in connection with, or accrued onon any Merger Consideration, cash payable in lieu of fractional shares in accordance with Section 4.3 or dividends and other distributions in accordance with Section 4.2(h). Until so surrendered, each such Certificate shall, after the Effective Time, represent for all purposes only the right to receive the Merger Consideration. , cash payable in lieu of fractional shares in accordance with Section 4.3 and dividends and other distributions in accordance with Section 4.2(h).
(e) If any Merger Consideration cash payment is to be paid made to a Person other than the stockholder Person in whose name the Book Entry Share transferred or applicable surrendered Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Person requesting such exchange payment shall pay pay, or cause to the Paying Agent be paid, any transfer or other Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Entry Share transferred surrendered Certificate, or Certificate surrenderedrequired for any other reason relating to such holder or requesting Person, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicablepayable. If any portion of the Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition to the registration thereof that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the Merger Consideration shall pay, or cause to be paid, to the Exchange Agent any transfer or other Taxes required as a result of such registration in the name of a Person other than the registered holder of such Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(df) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company shall be closed and thereafter, there shall be no further registration of Transfers of shares of Company Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock that were outstanding immediately prior to the Effective TimeTime shall cease to have any rights with respect to such shares of Company Common Stock except the right to receive the consideration provided for, and in accordance with the procedures set forth, in this Article IV or as otherwise provided herein or by Applicable Law. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Exchange Agent, the Surviving Corporation or the Paying Agent for any reasonParent, they such Certificates shall be cancelled canceled and exchanged for the Merger Consideration pursuant to consideration provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by LawIV.
(eg) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by undistributed to the former holders of shares of Company stockholders Common Stock one (1) year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged his, her or its shares of Company Common Stock for the Merger Consideration in accordance with this Section 4.2 prior to that time shall thereafter look only to Parent for delivery of the Merger Consideration in respect of such holder’s shares. Notwithstanding the foregoing, neither Parent, Merger Sub, the Company nor the Surviving Corporation shall be liable to any holder of shares of Company Common Stock for any Merger Consideration or other amounts delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. Any portion of the Exchange Fund remaining unclaimed by holders of shares of Company Common Stock three (3) years after the Effective Time (or such earlier date prior to such time as such amounts would otherwise escheat to or become property of any Governmental Authority) shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gh) If any Certificate shall have been lost, stolen No dividends or destroyed, upon other distributions with respect to shares of Parent Common Stock issued in the making of an affidavit of that fact (which affidavit Merger shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in a form reasonably satisfactory this Section 4.2. Following such surrender, subject to the effect of escheat, Tax or other Applicable Law, there shall be paid, without interest, to the record holder of the shares of Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue Common Stock issued in exchange for therefor (i) at the time of such lostsurrender, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled all dividends and other distributions payable in respect of such Certificate shares of Parent Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of shares of Parent Common Stock, all shares of Parent Common Stock to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(i) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Article IIISection 4.2 to pay for Dissenting Shares for which appraisal rights shall have been perfected shall be returned to Parent upon the settlement or final and non-appealable adjudication of any claim for appraisal rights asserted with respect to such Dissenting Shares.
(j) All Merger Consideration issued and paid to a holder of Company Common Stock upon conversion of the Company Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 4.2(h) or Section 4.3) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such Company Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (LVB Acquisition, Inc.), Merger Agreement (Zimmer Holdings Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an exchange agent reasonably acceptable to the Company (or cause the "Exchange Agent") to be deposited) with act as the Paying Agent, agent for the account and benefit purpose of exchanging for the former holders Merger Consideration for: (i) the Certificates, or (ii) book-entry shares which immediately prior to the Effective Time represented the shares of Company Common StockStock (the "Book-Entry Shares"). On and after the Effective Time, an amount of cash Parent shall deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to this Article III in respect of all of the shares of Company Common Stock and Company Preferred Stock represented by the Certificates and the Book-Entry Shares (the "Payment Fund") in amounts and at the times necessary for such cash shall be referred to in this Agreement as payments. If for any reason (including losses) the “Consideration Fund”). In the event the Consideration Payment Fund shall be insufficient is inadequate to pay the Merger Consideration (including with respect amounts to Company Common Stock held by stockholders who did not vote in favor which holders of the Merger but who did not exercise, or who shares shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock be entitled under the DGCLSection 3.01(b), Parent shall promptly deliver, take all steps necessary to enable or cause the Surviving Corporation promptly to be delivered, deposit in trust additional funds to cash with the Paying Exchange Agent in an amount that is equal to the deficiency required sufficient to make such payments.
(b) all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock and Company Preferred Stock for the Merger Consideration. Promptly after the Effective Time (Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Common Stock and in any event within five (5) Business Days after Company Preferred Stock at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, transmittal and instructions (which shall specify
26995100v.1 that shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of shares of Company Common Stock or Company Preferred Stock that have been converted into the surrender right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Certificates Company Common Stock or transfer Company Preferred Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of the Book Entry Shares in exchange for payment of the Merger Considerationa Certificate, the form together with a duly completed and substance of which validly executed letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may reasonably be required pursuant requested by the Exchange Agent, or (ii) receipt of an "agent's message" by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-Entry Shares. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such instructionsCertificate or Book-Entry Share, as applicable, shall represent after the holder of such Book Entry Share or Certificate Effective Time for all purposes only the right to receive the Merger Consideration payable in respect thereof. No interest shall be entitled to receive in exchange therefor, subject to paid or accrued on the cash payable upon the surrender or transfer of any required withholding Certificate or Book-Entry Share. Upon payment of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred each Certificate or Certificate Certificates so surrendered shall forthwith immediately be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock or Company Preferred Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to or Company Preferred Stock on the Effective Timestock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one holders of shares six (16) year months after the Effective Time shallshall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Common Stock or Company Preferred Stock for the Merger Consideration in accordance with this Section 3.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Common Stock or Company Preferred Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Company Common Stock 26995100v.1 or Company Preferred Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, be delivered to the property of Parent free and clear of any claims or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment interest of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(f) Notwithstanding Any portion of the foregoing, neither Merger Consideration made available to the Paying Exchange Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered any Dissenting Shares shall be returned to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyedParent, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIdemand.
Appears in 2 contracts
Samples: Merger Agreement (Nanosphere Inc), Merger Agreement (Nanosphere Inc)
Surrender and Payment. (a) At or prior to the ClosingEffective Time the stock transfer books of Sagebrush shall be closed, Parent and no transfer of any share of Sagebrush Common Stock theretofore outstanding shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, thereafter be made. As soon as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to practicable after the Effective Time, Parent shall deposit each holder of Sagebrush Common Stock converted pursuant to Section 2.5(b), upon surrender, for cancellation, to an exchange agent designated by WSMP, subject to the approval of Sagebrush (or cause such approval not to be deposited) with withheld or delayed unreasonaly), prior to the Paying Merger (the "Exchange Agent"), for the account and benefit of the former holders of Company one or more certificates previously representing Sagebrush Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall will be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right entitled to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Sharescertificates representing Merger Consideration, as applicableprovided in Section 2.5(c), shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions a check for use the applicable cash amount, if any, as provided in effecting the surrender Section 2.6, in each case in respect of the Certificates aggregate number of shares of Sagebrush Common Stock previously represented by the certificate or transfer certificates surrendered and promptly canceled after receipt thereof by the Exchange Agent. As promptly as practicable after the Closing Date, WSMP shall cause the Exchange Agent to deliver or mail to each shareholder of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which Sagebrush a letter of transmittal and instructions shall be as reasonably agreed to by for use in surrendering, in exchange for Merger consideration, the Company and Parent and prepared certificates that immediately prior to the ClosingEffective Time represented shares of Sagebrush Common Stock. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agentsuch certificates, in each case together with such letter of transmittal, duly executed transmittal and completed in accordance with the instructions thereto, and with such other documents as may reasonably be required pursuant to such instructionsrequested, the holder of such Book Entry Share or Certificate WSMP shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, promptly cause the Merger Consideration pursuant to be issued and delivered to the provisions persons entitled therto. No dividend or other distribution payable following the Closing with respect to shares of this Article IIIWSMP Common Stock to be recieved as Merger Consideration shall be paid, and there shall be no right to vote such shares of WSMP Common Stock, until the Book Entry Share so transferred Sagebrush shareholder has tendered the certificate or Certificate so surrendered certificates representing shares of Sagebrush Common Stock to be exchanged for Merger Consideration, it being understood, however, that such tender when made shall forthwith be cancelledrelate back to the Effective Time for the purposes of any rights to receive dividends and other distributions with respect to WSMP Common Stock distributable to holders of record after the Effective Time. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of acccrued on the Merger Consideration to a Person other than upon the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction surrender of the Paying Agent that such Tax has been paid certificate or is not applicable.
(c) The cash certificates representing shares of Sagebrush Common Stock or on dividends or other distributions deferred as described in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that immediately preceding sentence. With respect to any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent certificate for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Sagebrush Common Stock that were outstanding immediately prior to the Effective Time. Ifhas been lost or destroyed, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they WSMP shall be cancelled and exchanged for cause the Merger Consideration pursuant attributable to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, paid upon receipt of evidence and indemnity reasonably satisfactory to it of the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIshares represented thereby.
Appears in 2 contracts
Samples: Merger Agreement (Sagebrush Inc), Merger Agreement (WSMP Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration. As of the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Exchange Agent, for the account and benefit of the former holders of shares of Company Common Stock, an amount for exchange in accordance with this Section 2.03 through the Exchange Agent, (x) certificates (or evidence of shares in book-entry form) representing the shares of Parent Common Stock issuable pursuant to Section 2.02(a)(i) in exchange for outstanding shares of Company Common Stock and (y) cash sufficient to pay the Merger aggregate Per Share Cash Consideration payable pursuant to Section 2.02(a)(i). Parent agrees to make available directly or indirectly to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which such holders are entitled pursuant to Section 2.03(f) and cash in lieu of any fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.07. Promptly after the Effective Time (and in no event more than five Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the Effective Time and which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. All certificates (or evidence of shares in book-entry form) and cash deposited with the Exchange Agent pursuant to this Article III (such cash Section 2.03 shall be referred to in this Agreement as the “Exchange Fund.” Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund”). In the event the Consideration The Exchange Fund shall not be insufficient used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests; provided, further, that, to the extent necessary to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)Consideration, Parent shall promptly deliver, or cause to be delivered, provided additional funds to the Paying Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in an the amount that is equal to of any such losses. Any interest and other income resulting from such investments shall be the deficiency required to make such paymentsproperty of, and paid to, Parent upon termination of the Exchange Fund.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose Each holder of shares were of Company Common Stock that have been converted into the right to receive the Merger Consideration pursuant shall be entitled to Section 3.1: receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to in respect of the provisions Company Common Stock represented by a Certificate or Uncertificated Share. The shares of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders Parent Common Stock constituting part of Book Entry Shares or Certificates in connection with, or accrued on, the such Merger Consideration. , at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Company Common Stock or is otherwise required under Applicable Law.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other similar Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after the Effective Time, there shall be no transfers on the share The stock transfer books of the Company shall be closed immediately upon the Effective Time and there shall be no further registration of the transfers of shares of Company Common Stock that were outstanding immediately prior to thereafter on the Effective Timerecords of the Company. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Surviving Corporation or the Paying Exchange Agent for any reason, they shall be cancelled canceled and exchanged for the Merger Consideration Consideration, any dividends or other distributions to which the holders thereof are entitled pursuant to Section 2.03(f) and any cash in lieu of any fractional share of Parent Common Stock to which such holders are entitled pursuant to Section 2.07, in each case to the extent provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund (including made available to the proceeds of any investments thereofExchange Agent pursuant to Section 2.03(a) that remains unclaimed by the former holders of shares of Company stockholders one (1) year Common Stock 12 months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares as otherwise instructed by Parent, and any such holder who has not theretofore complied exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration and any dividends and distributions (and cash in lieu of any fractional shares of Parent Common Stock) with respect thereto, in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Common Stock for any amounts paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If any Certificate shall have been lostNo dividends or other distributions with respect to securities of Parent constituting part of the Merger Consideration, stolen or destroyedand no cash payment in lieu of fractional shares as provided in Section 2.07, upon the making of an affidavit of that fact (which affidavit shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in a form reasonably satisfactory this Section 2.03. Following such surrender or transfer, there shall be paid, without interest, to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, in whose name the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate securities of Parent constituting part of the Merger Consideration have been registered, (i) promptly after the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled in pursuant to Section 2.07 and the aggregate amount of all dividends or other distributions payable with respect to securities of Parent constituting part of the Merger Consideration with a record date after the Effective Time that were paid prior to the time of such Certificate pursuant surrender or transfer with respect to this Article IIIsuch securities of Parent, and (ii) at the appropriate payment date, the amount of all dividends or other distributions payable with respect to securities of Parent constituting part of the Merger Consideration with a record date after the Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer.
(g) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Common Stock in connection with the Merger, and the filing of any related Tax returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.
Appears in 2 contracts
Samples: Merger Agreement (Aetna Inc /Pa/), Merger Agreement (Coventry Health Care Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall select a nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as Paying Agent (the “Paying Agent”) for the payment of the Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to the Effective Time represented by a Certificate and each Book‑Entry Share outstanding immediately prior to the Effective Time, in each case, other than the Cancelled Shares and any Dissenting Shares. At or prior to the Closing, Parent shall appoint a United States bank deposit or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable cause to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement be deposited with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, cash in an amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant (other than the Company Equity Award Consideration) required to be paid by the Paying Agent in accordance with this Article III Agreement (such cash shall be referred to in this Agreement as the “Consideration Exchange Fund”). In the event the Consideration Exchange Fund shall be insufficient to pay make the payments in connection with the Merger Consideration (including with respect to Company Common Stock held contemplated by stockholders who did not vote in favor of the Merger but who did not exerciseSection 3.01 or Section 3.05, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)respectively, Parent shall promptly deliver, deposit or cause to be delivered, deposited additional funds to with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required to make such paymentsthe applicable payment. The Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration (other than the Company Equity Award Consideration) contemplated to be issued pursuant to Section 3.01 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.
(b) Promptly As soon as reasonably practicable after the Effective Time (and in any event within five not later than the second (52nd) Business Days after Day following the Effective Time), Parent shall cause will direct the Paying Agent to mail send to each stockholder whose holder of record of a Certificate or Certificates or who holds their shares were converted into of Company Common Stock directly and not in “street name” as of immediately prior to the right Effective Time (other than the Cancelled Shares and any shares in respect of Company Equity Awards and except for any Dissenting Shares) and each holder of Unexchanged Shares, to receive the extent such holder remains entitled to proceeds under the 2021 Merger Consideration pursuant to Section 3.1: Agreement in accordance with its terms and applicable Law (each, an “LoT Holder”)
(i) a letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates Certificate(s) (or customary and effective affidavits of loss in lieu thereof) or transfer of the Book Entry Shares thereof which is reasonably acceptable to Parent), to the Paying Agent Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, and (ii) instructions for use in effecting the surrender of the Certificates (or transfer customary and effective affidavits of the Book Entry Shares loss in lieu thereof which is reasonably acceptable to Parent), as applicable, in exchange for payment of the Merger ConsiderationConsideration in such form as Parent and the Company may reasonably agree.
(c) Upon the surrender of a Certificate (or delivery of a customary affidavit of loss in lieu thereof which is reasonably acceptable to Parent), as applicable, for cancellation to the form and substance of which Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions shall thereto, and such other documents as may be as reasonably agreed required pursuant to such instructions or by the Paying Agent, the holder of the shares of Company and Parent and prepared Common Stock represented by such Certificate or otherwise constituting an LoT Holder as of immediately prior to the ClosingEffective Time (other than any shares in respect of Company Equity Awards or Company Warrants) shall be entitled to receive in exchange therefor and Parent shall cause the Paying Agent to pay in exchange therefor, as promptly as practicable (but in any event within three (3) Business Days), the Merger Consideration pursuant to the provisions of this Article III, and the Certificates surrendered shall forthwith be canceled. Upon receipt of an “agent’s message” by the Paying Agent in connection with the (or such other evidence, if any, of transfer of a Book Entry Share or surrender of a Certificate for cancellation to as the Paying Agent, Agent may reasonably request) in each the case together with such letter of transmittal, duly executed Book-Entry Shares held in “street name” and completed not in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructionsrespect of any LoT Holders, the holder holders of such Book Book-Entry Share or Certificate Shares shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article Article III, and the Book transferred Book-Entry Share so transferred or Certificate Shares so surrendered shall forthwith will be cancelledcanceled. No interest holder of Book-Entry Shares will be paid required to holders provide a Certificate or an executed letter of Book Entry Shares or Certificates transmittal to the Paying Agent in connection withorder to receive the payment that such holder is entitled to receive pursuant to this Article III. In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company, or accrued on, payment of the Merger Consideration. If any appropriate amount of Merger Consideration is to may be paid made to a Person other than the stockholder Person in whose name the Book Entry Certificate or Book‑Entry Share transferred or Certificate so surrendered in exchange therefor is registered, it subject to Section 3.02(e), if such Certificate shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any properly endorsed or otherwise be in proper form for transfer or other Taxes (and accompanied by all documents reasonably required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any Agent) or such investments Book‑Entry Share shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United Statesproperly transferred. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and No interest shall be paid as Parent directs. No investment or accrue on any cash payable upon surrender of the Consideration Fund shall relieve Parent, the Surviving Corporation any Certificate or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration FundBook‑Entry Share.
(d) At and after Prior to the Effective Time, there Parent and the Company shall reasonably cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 2:00 p.m. Eastern time (or such other time as may be no transfers mutually agreed in writing by Parent and the Company) on the share transfer books Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date or within two (2) Business Days thereof an amount in cash in immediately available funds equal to the number of the Company of the shares of Company Common Stock that were outstanding held of record by DTC or such nominee immediately prior to the Effective Time. If, after Time (other than the Effective Time, Certificates or Book Entry Cancelled Shares are presented to the Surviving Corporation or the Paying Agent and any shares in respect of Company Equity Awards and except for any reason, they shall be cancelled and exchanged for Dissenting Shares) multiplied by the Merger Consideration pursuant to this Article III(such amount, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation“DTC Payment”), and any stockholder of (ii) if the Closing occurs after such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon time on the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedClosing Date, the Paying Agent shall issue will transmit to DTC or its nominee on the third (3rd) Business Day after the Closing Date an amount in exchange for such lost, stolen or destroyed Certificate cash in immediately available funds equal to the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIDTC Payment.
Appears in 2 contracts
Samples: Merger Agreement (Doma Holdings, Inc.), Merger Agreement (Doma Holdings, Inc.)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint a bank or trust company (or cause the "EXCHANGE AGENT") for the purpose of exchanging certificates representing Company Shares for the Merger Consideration. Parent will make available to be deposited) with the Paying Exchange Agent, for the account and benefit of the former holders of Company Common Stockas needed, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III be paid in respect of the Company Shares (such cash shall be referred to in this Agreement as the “Consideration Fund”"EXCHANGE FUND"). In the event the Consideration Fund shall be insufficient to pay For purposes of determining the Merger Consideration (including with respect to be made available, Parent shall assume that no holder of Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights Shares will perfect his right to appraisal of such his Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Shares. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Parent will send, or will cause the Exchange Agent to send, to each holder of Company Shares at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) Time a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry certificates representing Company Shares to the Paying Exchange Agent). The Exchange Agent and shall, pursuant to irrevocable instructions, make the payments provided in this Section 2.3. The Exchange Fund shall not be used for any other purpose, except as provided in this Agreement.
(iib) instructions for use in effecting the surrender Each holder of the Certificates or transfer of the Book Entry Company Shares in exchange for payment of that have been converted into a right to receive the Merger Consideration, upon surrender to the form and substance Exchange Agent of which a certificate or certificates representing such Company Shares, together with a properly completed letter of transmittal covering such Company Shares and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructionsreasonably requested, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant payable in respect of such Company Shares. Until so surrendered, each such certificate shall, after the Effective Time, represent for all purposes, only the right to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person person other than the stockholder in whose name registered holder of the Book Entry Share transferred Company Shares represented by the certificate or Certificate certificates surrendered in exchange therefor is registeredtherefor, it shall be a condition of to such exchange payment that the Person certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person person other than the stockholder owning the Book Entry Share transferred registered holder of such Company Shares or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; providedpayable. For purposes of this Agreement, however"PERSON" means an individual, that a corporation, a partnership, a limited liability company, an association, a trust or any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days other entity or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parentorganization, the Surviving Corporation including a government or the Paying Agent from promptly making the payments required by this Article III, and following political subdivision or any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates agency or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect instrumentality thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Computer Associates International Inc), Merger Agreement (Platinum Technology International Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is an agent reasonably acceptable to the Company to act, among other things, as paying agent (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) and to deliver (ii) uncertificated shares of Company Stock (the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement“Uncertificated Shares”). At or prior to the Effective Time, Parent shall deposit (with or cause otherwise make available to be deposited) with the Paying Exchange Agent, in trust for the account and benefit of the former holders of shares of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable to be paid in respect of the Certificates and the Uncertificated Shares. Parent agrees to make available to the Exchange Agent from time to time as needed, any dividends or distributions to which such holder is entitled pursuant to Section 2.03(f) of this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”)Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (Time, and in any event within five (5) no later than the 10th Business Days after Day following the Effective Time), Parent shall send, or shall cause the Paying Exchange Agent to mail send, to each stockholder whose holder of record of shares were converted into of Company Stock at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time a letter of transmittal, in customary form, that transmittal and instructions reasonably acceptable to the Company (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Exchange Agent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange.
(b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration in respect of the Company Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Merger Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Company Stock or is otherwise required under Applicable Law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration and the right to receive any dividends or other distributions pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. Section 2.03(f).
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeStock. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonExchange Agent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund (including deposited with or otherwise made available to the proceeds of any investments thereofExchange Agent pursuant to Section 2.03(a) that remains unclaimed by the former holders of shares of Company stockholders one (1) year Stock nine months after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged shares of Company Stock for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for for, and Parent shall remain liable for, payment of their claim for the Merger Consideration Consideration, and any dividends and distributions with respect thereto pursuant to Section 2.03(f), in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Stock for any amounts properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate Any amounts remaining unclaimed by holders of shares of Company Stock five years after the Effective Time (or Book Entry Share shall not have been surrendered or transferredsuch earlier date, respectively, immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority) shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If No dividends or other distributions with respect to securities of Parent constituting part of the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 2.07, shall be paid to the holder of any Certificate Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section 2.03. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been lostregistered, stolen (i) at the time of such surrender or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedtransfer, the Paying Agent shall issue amount of any cash payable in exchange for such lost, stolen or destroyed Certificate the Merger Consideration lieu of fractional shares to which such Person is entitled in respect pursuant to Section 2.07 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such Certificate pursuant surrender with respect to this Article IIIsuch securities, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred by a holder of Company Stock in connection with the Merger, and the filing of any related Tax returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.
Appears in 2 contracts
Samples: Merger Agreement (Xto Energy Inc), Merger Agreement (Exxon Mobil Corp)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States commercial bank or trust company or other independent financial institution in that is reasonably satisfactory to the United States Company (the “ “Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver purpose of paying the Merger Consideration to former stockholders the holders of the Company. The Company Common Stock and Parent shall enter into a Paying Agent agreement Agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (deposit, or cause Merger Subsidiary to be deposited) deposit, with the Paying Agent, for the account benefit (from and benefit after the Effective Time) of the former holders of shares of Company Common Stock, an amount of for payment in accordance with this Section 2.03 through the Paying Agent, cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 2.02. All cash deposited with the Paying Agent pursuant to this Article III (such cash Section 2.03(a) shall herewith be referred to in this Agreement as the “Consideration Payment Fund”)“. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) two Business Days after following the Effective TimeClosing Date), Parent shall send, or shall cause the Paying Agent to mail send, to each stockholder whose Person who was, immediately prior to the Effective Time, a holder of record of shares were converted into the right of Company Common Stock entitled to receive payment of the Merger Consideration pursuant to Section 3.1: (i2.02(a) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent) for use in such payment.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent and of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to in respect of the provisions of this Article III, and the Book Entry Share so transferred Company Common Stock represented by a Certificate or Certificate Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall forthwith be cancelled. No interest will be paid represent after the Effective Time for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after the Effective Time, there shall be no transfers on the share The stock transfer books of the Company shall be closed immediately upon the Effective Time and there shall be no further registration of the transfers of shares of Company Common Stock that were outstanding immediately prior to thereafter on the Effective Timerecords of the Company. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled canceled and exchanged for converted into the right to receive only the Merger Consideration pursuant to the extent provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund (including made available to the proceeds of any investments thereofPaying Agent pursuant to Section 2.03(a) that remains unclaimed by the former holders of shares of Company stockholders one Common Stock six (16) year months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered to Parent or otherwise on the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares instruction of Parent, and any such holder who has not theretofore complied exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration Consideration, in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Common Stock for any amounts paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Labarge Inc), Merger Agreement (Ducommun Inc /De/)
Surrender and Payment. (a) At or prior Prior to the ClosingMailing Date, Parent CME Group shall appoint a United States bank or trust company or other independent financial institution in the United States an exchange agent reasonably acceptable to NYMEX Holdings (the “ Paying “Exchange Agent”) that is reasonably acceptable to for the Company to act, among other things, as paying agent purpose of exchanging Certificates for the Merger and to deliver the Merger Consideration to former stockholders of the CompanyConsideration. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to As soon as reasonably practicable after the Effective Time, Parent shall deposit but in no event more than seven (or cause to be deposited7) with Business Days following the Paying AgentEffective Time, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exerciseCME Group will send, or who shall have effectively withdrawn or lostwill cause the Exchange Agent to send, their rights to appraisal each holder of such Company record of shares of NYMEX Holdings Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after Securities as of the Effective Time (and in any event within five (5) Business Days after and, to the Effective Timeextent commercially practicable, to make available for collection by hand if so elected by such holder of record), Parent shall cause the Paying Agent to mail to each stockholder whose shares of NYMEX Holdings Common Securities were converted into the right to receive the Merger Consideration pursuant to Section 3.1: 1.9 (iEffect on Capital Stock) and Section 1.10 (Election Procedures), a letter of transmittal, in customary form, that transmittal (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent) in such form as NYMEX Holdings and (ii) CME Group may reasonably agree, including instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) to the Certificates or transfer of the Book Entry Shares Exchange Agent in exchange for payment the Merger Consideration. Promptly after the Effective Time, CME Group shall cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of shares of NYMEX Holdings Common Securities, shares of CME Group Class A Common Stock (which shall be in non-certificated book-entry form) and an amount of cash in U.S. dollars sufficient to be issued and paid pursuant to Section 1.9 (Effect on Capital Stock), Section 1.10 (Election Procedures) and Section 2.5 (No Fractional Shares), payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of Article I and Article II. Following the Effective Time, CME Group agrees to make available to the Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay any dividends and other distributions pursuant to Section 2.1(f). All cash and book-entry shares representing CME Group Class A Common Stock deposited with the Exchange Agent shall be referred to in this Agreement as the “Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 1.9 (Effect on Capital Stock), Section 1.10 (Election Procedures) and Section 2.5 (No Fractional Shares) out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by CME Group; provided that no such investment or losses thereon shall affect the Merger Consideration payable to holders of NYMEX Holdings Shares entitled to receive such consideration or cash in lieu of fractional interests and CME Group shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of NYMEX Holdings Shares entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, CME Group.
(b) Each holder of shares of NYMEX Holdings Common Securities that have been converted into the right to receive the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent(or effective affidavits of loss in lieu thereof), in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may reasonably be required pursuant to such instructionsby the Exchange Agent, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefortherefor (i) the number of shares of CME Group Class A Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, subject in the aggregate, the whole number of shares of CME Group Class A Common Stock, if any, that such holder has the right to receive and/or (ii) a check in the amount, if any, that such holder has the right to receive, including cash payable in lieu of fractional shares pursuant to Section 2.5 (No Fractional Shares) and dividends and other distributions payable pursuant to Section 2.1(f) (less any required withholding of TaxesTax withholding), the pursuant to Section 1.9 (Effect on Capital Stock), Section 1.10 (Election Procedures) and this Article II. The Merger Consideration pursuant shall be paid as promptly as practicable (by mail or, to the provisions extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of this Article III, a Certificate) after receipt by the Exchange Agent of the Certificate and letter of transmittal in accordance with the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelledforegoing. No interest will shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Book Entry Shares or Certificates in connection withCertificates. Until so surrendered, or accrued oneach such Certificate shall, after the Effective Time, represent for all purposes only the right to receive such Merger Consideration. .
(c) If any Merger Consideration cash payment is to be paid made to a Person other than the stockholder Person in whose name the Book Entry Share transferred or applicable surrendered Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Entry Share transferred or surrendered Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash payable. If any portion of the Merger Consideration is to be registered in the Consideration Fund name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be invested by a condition to the Paying Agent as directed by Parent; provided, however, registration thereof that any such investments the surrendered Certificate shall be properly endorsed or otherwise be in short-term obligations proper form for transfer and that the Person requesting such delivery of the United States with maturities Merger Consideration shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of no more such registration in the name of a Person other than thirty (30) days the registered holder of such Certificate or guaranteed by establish to the United States and backed by the full faith and credit satisfaction of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be Exchange Agent that such Tax has been paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundis not payable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company NYMEX Holdings Common Stock that were Securities. From and after the Effective Time, the holders of Certificates representing shares of NYMEX Holdings Common Securities outstanding immediately prior to the Effective TimeTime shall cease to have any rights with respect to such shares of NYMEX Holdings Common Securities except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation Exchange Agent or the Paying Agent for any reasonCME Group, they shall be cancelled and exchanged for the Merger Consideration pursuant to consideration provided for, and in accordance with the procedures set forth, in Article I and this Article III, except as otherwise provided by LawII.
(e) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders holders of shares of NYMEX Holdings Common Securities one (1) year after the Effective Time shallshall be returned to CME Group, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged his or her shares of NYMEX Holdings Common Securities for the Merger Consideration in accordance with this Article III with respect Section 2.1 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent CME Group for payment delivery of their claim for the Merger Consideration in respect thereof.
(f) of such holder’s shares of NYMEX Holdings Common Securities. Notwithstanding the foregoing, neither the Paying Agent CME Group, Merger Sub nor any party hereto NYMEX Holdings shall be liable to any Person in respect holder of cash from the shares of NYMEX Holdings Common Securities for any Merger Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawproperty Laws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any Merger Consideration remaining unclaimed by holders of shares of NYMEX Holdings Common Securities immediately prior to the date on which any Merger Consideration in respect thereof such time as such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent CME Group free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to shares of CME Group Class A Common Stock issued in the Surviving CorporationMerger shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 2.1. Following such surrender, and any stockholder subject to the effect of escheat, Tax or other applicable Law, there shall be paid, without interest, to the record holder of the shares of CME Group Class A Common Stock, if any, issued in exchange therefor (i) at the time of such Certificate surrender, all dividends and other distributions payable in respect of any such shares of CME Group Class A Common Stock with a record date after the Effective Time and a payment date on or Book Entry Share who has prior to the date of such surrender and not theretofore complied with this Article III previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect thereto shall thereafter look only to Parent for such shares of CME Group Class A Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of their claim for Merger Consideration dividends or other distributions in respect thereofof shares of CME Group Class A Common Stock, all shares of CME Group Class A Common Stock to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(g) If any Certificate Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.1 to pay for shares of NYMEX Holdings Common Securities for which appraisal rights shall have been lost, stolen or destroyedperfected shall be returned to CME Group, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIdemand.
Appears in 2 contracts
Samples: Merger Agreement (Nymex Holdings Inc), Merger Agreement (Cme Group Inc.)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company1.3.1. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company as exchange agent (the "Exchange Agent") in connection with the Merger for the purpose of exchanging Common Certificates for Parent ADRs or for certificates representing Parent Ordinary Shares ("Parent Certificates"), as applicable, and cash in lieu of fractional Parent Depositary Shares and Parent Ordinary Shares, as applicable, in accordance with Section 1.5, and exchanging Preferred Certificates for the Preferred Consideration. The Company shall act as agent for each holder of record of Company Common Shares as of the Effective Time that does not elect to receive Parent Ordinary Shares in lieu of Parent Depositary Shares (each, a "Non-Electing Record Holder") and shall enter into an agreement (the "Nominee Agreement") with Parent and the Exchange Agent. Parent shall issue the Parent Ordinary Shares that will represent the Parent Depositary Shares issuable pursuant to the Merger in registered form to the Exchange Agent (or its nominee), as nominee and agent for and on behalf of the Non-Electing Record Holders (the "Nominee") for the issuance of Parent Depositary Shares in respect of Company Common Shares for which Common Certificates have been properly delivered to the Exchange Agent and no election has been made to receive Parent Ordinary Shares, subject to the terms and conditions of this Agreement and the Nominee Agreement. The Parent Ordinary Shares in registered form held by the Nominee of the Non-Electing Record Holders shall be deposited by the Nominee or on its behalf with the Depositary (or as it may direct) as and when required for the delivery of Parent Depositary Shares in accordance with this Article I. To the extent required, the Exchange Agent will requisition from the Depositary, from time to time, that number of Parent Depositary Shares, in any denominations as the Exchange Agent shall specify, as are issuable in respect of Company Common Shares of Non-Electing Record Holders for which Common Certificates have been properly delivered to the Exchange Agent. Parent shall deposit (with the Exchange Agent, from time to time that number of Parent Certificates, in any denominations as the Exchange Agent shall specify, as are issuable in respect of Company Common Shares for which Common Certificates have been properly delivered to the Exchange Agent, and an election has been made to receive Parent Ordinary Shares. Parent shall also from time to time deposit or cause to be deposited) deposited with the Paying AgentExchange Agent U.S. dollars in an amount sufficient to provide the Exchange Agent with the cash to fund payments to be made pursuant to Section 1.3.6. The Company shall maintain, for pursuant to Section 1.9, sufficient funds in an escrow account with the account and benefit Exchange Agent to provide the Exchange Agent with the cash to fund payments in respect of the former Preferred Consideration.
1.3.2. Promptly after the Effective Time, the Surviving Corporation shall send, or shall cause the Exchange Agent to send, to each holder of record as of the Effective Time of Company Common Shares and/or Company Money Market Preferred Shares (other than holders of shares that constitute Excluded Shares) a letter of transmittal (which shall with respect to holders of Company Common StockShares also serve as a form of election), an amount in a form upon which the Company and Parent may reasonably agree, for use in effecting delivery of cash sufficient Certificates to pay the Exchange Agent. This letter of transmittal shall provide each holder of record of Company Common Shares with the option to elect to receive Parent Ordinary Shares in lieu of Parent Depositary Shares. Each holder of Company Common Shares or Company Money Market Preferred Shares that have been converted in the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant the consideration set forth in Sections 1.2.2 and 1.2.3, as applicable, shall, upon surrender to Section 3.1: (i) the Exchange Agent of a Certificate or Certificates, together with a properly completed letter of transmittal, in customary form, that shall specify that delivery of such Certificates transmittal covering the Company Common Shares or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Company Money Market Preferred Shares, as applicable, shall passrepresented by the Certificate or Certificates, only upon proper delivery receive (i) the number of whole Parent Depositary Shares (or, if an election is duly made therefor, the number of whole Parent Ordinary Shares) into which all of the Certificates (Company Common Shares, represented by the holder's Common Certificate or affidavits of loss Common Certificates, are converted in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and accordance with Section 1.2.2, (ii) instructions for use a check in effecting an amount of U.S. dollars (after giving effect to any required tax withholdings) equal to (A) any cash in lieu of fractional interests in shares to be paid pursuant to Section 1.5, plus (B) any cash dividends or other distributions that the surrender holder has the right to receive pursuant to Section 1.3.6 and/or (iii) a check in an amount of U.S. dollars (after giving effect to any required tax withholdings) equal to the aggregate amount of the Certificates or transfer Preferred Consideration which all of the Book Entry Shares in exchange for payment of the Merger ConsiderationCompany Money Market Preferred Shares, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to represented by the holder's Preferred Certificate or Preferred Certificates, are converted pursuant to Section 1.2.3. Until so surrendered, each Common Certificate shall, after the Effective Time, represent for all purposes only the right to receive the number of whole Parent Depositary Shares and/or Parent Ordinary Shares, as applicable, into which the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” Common Shares represented by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a that Common Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed are converted in accordance with Section 1.2.2 and the instructions applicable amounts provided in the foregoing clause (ii) and each Preferred Certificate shall, after the Effective Time, represent for all purposes only the right to receive the Preferred Consideration into which the Company Money Market Preferred Shares represented by that Preferred Certificate are converted in accordance with Section 1.2.3.
1.3.3. If any Parent Depositary Shares, Parent Ordinary Shares or Preferred Consideration, as applicable, are to be issued or paid to a person other than the registered holder of Company Common Shares or Company Money Market Preferred Shares, as applicable, represented by a Certificate or Certificates surrendered with respect thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate it shall be entitled a condition to receive in exchange therefor, subject to any required withholding of Taxes, this issuance or payment that the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred Certificate or Certificate Certificates so surrendered shall forthwith be cancelled. No interest will properly endorsed or otherwise be paid in proper form for transfer and that the Person (as defined in Section 2.1.1) requesting this issuance or payment shall pay to holders the Exchange Agent any transfer or other taxes required as a result of Book Entry Shares this issuance or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid payment to a Person other than the stockholder in whose name the Book Entry Share transferred registered holder of these Company Common Shares or Certificate surrendered in exchange therefor is registeredCompany Money Market Preferred Shares, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrenderedas applicable, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax this tax has been paid or is not applicablepayable.
(c) 1.3.4. The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share stock transfer books of the Company shall be closed at the close of trading on the shares New York Stock Exchange ("NYSE") on the day prior to the Effective Time, and thereafter there shall be no further registration of transfers of Company Common Stock Shares or Company Money Market Preferred Shares that were outstanding immediately prior to the Effective Time. If, after After the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they transfer shall be cancelled canceled and exchanged for the Merger consideration provided for, and in accordance with the procedures set forth, in this Article I.
1.3.5. Any Parent Ordinary Shares or Parent Depositary Shares to be issued in respect of Company Common Shares (and any cash in lieu of fractional interests in Parent Ordinary Shares or Parent Depositary Shares to be paid pursuant to Section 1.5, plus any cash dividend or other distribution that a former holder of Company Common Shares has the right to receive pursuant to Section 1.3.6) and any Preferred Consideration to be paid in respect of Company Money Market Preferred Shares, in each case pursuant to this Article IIII, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the any former holder of Company stockholders one (1) year Common Shares or Company Money Market Preferred Shares six months after the Effective Time shall, to shall be held by the extent permitted Exchange Agent (or a successor agent appointed by applicable Law, Parent) or shall be delivered to the Depositary upon the instruction of Parent and held by the Depositary, in either case subject to the instruction of Parent in an account or the Surviving Corporation accounts designated for no considerationthis purpose. Any Company stockholder owning Certificates or Book Entry Shares who has Parent shall not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect former holder of cash from Company Common Shares or Company Money Market Preferred Shares for any securities delivered or any amount paid by the Consideration Fund delivered Depositary, the Exchange Agent or its nominee, as the case may be, to a public official pursuant to any applicable abandoned property, escheat property laws. Any cash remaining unclaimed by holders of Company Common Shares or similar Law. If Company Money Market Preferred Shares two years after the Effective Time (or any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, earlier date immediately prior to the date on which any Merger Consideration in respect thereof that time as this cash would otherwise escheat to or become the property of any Governmental Entity pursuant to (as defined in Section 2.1.4.1)) or as is otherwise provided by applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares Law shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation or Parent, as Parent or may determine (provided that unclaimed Preferred Consideration shall become property of the Surviving Corporation, ).
1.3.6. No dividends or other distributions with respect to Parent Depositary Shares and Parent Ordinary Shares issuable with respect to the Company Common Shares shall be paid to the holder of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with unsurrendered Common Certificates until those Common Certificates are surrendered as provided in this Article III I. Upon surrender, there shall be issued and/or paid to the holder of the Parent Depositary Shares or Parent Ordinary Shares issued in exchange therefor, without interest, (A) at the time of surrender, the dividends or other distributions payable with respect thereto shall thereafter look only to those Parent for Depositary Shares and Ordinary Depositary Shares with a record date on or after the date of the Effective Time and a payment date on or prior to the date of their claim for Merger Consideration in respect thereof.
this surrender and not previously paid and (gB) If any Certificate shall have been lost, stolen or destroyed, upon at the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedappropriate payment date, the Paying Agent shall issue in exchange for such lost, stolen dividends or destroyed Certificate other distributions payable with respect to those Parent Depositary Shares and Parent Ordinary Shares with a record date on or after the Merger Consideration date of the Effective Time but with a payment date subsequent to which such Person is entitled surrender. For purposes of dividends or other distributions in respect of such Certificate Parent Depositary Shares and Parent Ordinary Shares, all Parent Depositary Shares and Parent Ordinary Shares to be issued and delivered pursuant to this Article IIIthe Merger shall be deemed issued and outstanding as of the Effective Time, and holders of these shares shall not be entitled to receive any dividend in respect of the calendar year 1999 or any other dividend in respect of which the record date is prior to the date of the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (WPP Group PLC), Merger Agreement (Young & Rubicam Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank or trust company or other independent nationally recognized financial institution in reasonably acceptable to Parent and the United States Company (the “ Paying “Exchange Agent”) that is for the purpose of exchanging for the Merger Consideration (i) certificates representing Company Shares (the “Certificates”) or (ii) uncertificated Company Shares (the “Uncertificated Shares”). The Exchange Agent agreement pursuant to which Parent shall appoint the Exchange Agent shall be in form and substance reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this AgreementParent. At or prior to the Effective Time, Parent shall deposit (with, or cause to be deposited) with otherwise make available to, the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay Exchange Agent the Merger Consideration payable to be paid in respect of the Certificates and the Uncertificated Shares (other than the Company Restricted Stock) and the Company Equity Award Consideration in respect of the Non-Employee Holders (and, if determined by Parent pursuant to this Article III (such cash shall be referred Section 2.04(d), all or a portion of the Company Equity Award Consideration to in this Agreement as all or a portion of the “Consideration Fund”Employee Holders). In the event the Consideration Fund shall be insufficient Parent agrees to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds make available to the Paying Agent in an amount that Exchange Agent, from time to time as needed, any dividends or distributions to which such holder is equal entitled pursuant to the deficiency required to make such payments.
(b) Section 2.03(f). Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Timethereafter), Parent shall send, or shall cause the Paying Exchange Agent to mail send, to each stockholder whose shares were converted into holder of Company Shares at the right to receive Merger Consideration pursuant to Section 3.1: Effective Time (i) other than the Company Restricted Stock), a letter of transmittal, transmittal and instructions in customary form, that form and reasonably acceptable to the Company (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Exchange Agent and shall include customary provisions with respect to delivery of an “agent’s message” regarding book-entry transfer of Uncertificated Shares) for use in such exchange. Such letter of transmittal shall be in the form and have such provisions as Parent and the Company may reasonably agree.
(b) Each holder of Company Shares that have been converted into the right to receive the Merger Consideration (other than the Company Restricted Stock) shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration payable for each such Company Share represented by such Certificate or for each such Uncertificated Share. The Parent Shares constituting part of such Merger Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a Book Entry physical certificate is required under Applicable Law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration and the right to receive any dividends or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required distributions pursuant to such instructionsSection 2.03(f). At the time set forth in Section 2.04(e), the holder of such Book Entry Share or Certificate each Non-Employee Holder shall be entitled to receive in exchange thereforsuch Non-Employee Holder’s Company Equity Award Consideration and, subject if determined by Parent pursuant to Section 2.04(e), all or a portion of the Company Equity Award Consideration payable to all or a portion of the Employee Holders shall be paid pursuant to this Section 2.03. No interest shall be paid or shall accrue on any required withholding cash payable upon surrender of Taxes, any Company Shares or upon the Company Equity Award Consideration.
(c) If any portion of the Merger Consideration pursuant to (other than in respect of the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration Company Restricted Stock) is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Transfer Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent and Parent that such Transfer Tax has been paid or is not applicable.
payable. The payment of any transfer, documentary, sales, use, stamp, registration, value-added and other Taxes and fees (cincluding any penalties and interest) The cash (“Transfer Taxes”) incurred solely by a holder of Company Shares in connection with the Consideration Fund shall be invested by Merger and any other transactions contemplated hereby, and the Paying Agent as directed by Parent; providedfiling of any related Tax Returns, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount responsibility of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundholder.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Surviving Corporation or the Paying Agent for any reasonExchange Agent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund made available to the Exchange Agent pursuant to Section 2.03(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former holders of Company stockholders one (1) year Shares that have been converted into the right to receive the Merger Consideration nine months after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged such Company Shares for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for for, and Parent shall remain liable for, payment of their claim for the Merger Consideration and any dividends and distributions with respect thereto pursuant to Section 2.03(f), in respect thereof.
(f) of such Company Shares without any interest thereon and subject to any withholding of Taxes required by Applicable Law in accordance with this Section 2.03(e). Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered Company Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not Any amounts remaining unclaimed by holders of Company Shares that have been surrendered converted into the right to receive the Merger Consideration two (2) years after the Effective Time (or transferred, respectively, such earlier date immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority) shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If No dividends or other distributions with respect to securities of Parent constituting part of the Merger Consideration, and no cash proceeds from the sale of fractional shares as provided in Section 2.06, shall be paid to the holder of any Certificate Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section 2.03. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedregistered, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate amount of any cash proceeds from the Merger Consideration sale of fractional shares to which such Person is entitled in respect pursuant to Section 2.06 and, at the time of such Certificate pursuant surrender or transfer, the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender or transfer with respect to this Article IIIsuch securities.
Appears in 2 contracts
Samples: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Pioneer Natural Resources Co)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying “Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as paying exchange agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying an Exchange Agent agreement with the Paying Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Exchange Agent consistent with the terms of this Agreement. At or prior to Promptly after the Effective TimeTime on the Closing Date, Parent shall deposit (or cause to be deposited) with the Paying Exchange Agent, for the account and benefit of the former holders of Company Common Stock, the aggregate number of shares of Parent Common Stock issuable pursuant to this Article IV, in an amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant required to be paid by the Exchange Agent in accordance with this Article III Agreement (such cash Parent Common Stock shall be referred to in this Agreement as the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 4.1(d). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)Consideration, Parent shall promptly deliver, or cause to be delivered, additional funds shares of Parent Common Stock to the Paying Exchange Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Exchange Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.14.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Exchange Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Exchange Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIIIV, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration, any cash paid in lieu of the issuance of any fractional shares or dividends or distributions payable with respect to the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Exchange Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Exchange Agent from promptly making the payments required by this Article IIIIV, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Exchange Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article IIIIV, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III IV with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Exchange Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III IV with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Exchange Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIIV.
Appears in 2 contracts
Samples: Merger Agreement (Ipass Inc), Merger Agreement (PARETEUM Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ “Paying and Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent and exchange agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying and Exchange Agent agreement with the Paying and Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying and Exchange Agent consistent with the terms of this Agreement. At or prior to Promptly after the Effective TimeTime on the Closing Date, Parent shall deposit (or cause to be deposited) with the Paying and Exchange Agent, for the account and benefit of the former holders of Company Common Stock, the aggregate Cash Consideration payable and the aggregate number of shares of Parent Common Stock issuable pursuant to this Article IV, in an amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant required to be paid by the Paying and Exchange Agent in accordance with this Article III Agreement (such cash and Parent Common Stock shall be referred to in this Agreement as the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 4.1(d) and any dividends or distributions which holders of Company Common Stock may be entitled pursuant to Section 4.2(h). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds and shares of Parent Common Stock to the Paying and Exchange Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying and Exchange Agent to mail to each stockholder whose shares were converted into the right to receive the Merger Consideration pursuant to Section 3.14.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying and Exchange Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying and Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying and Exchange Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIIIV, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration, any cash paid in lieu of the issuance of any fractional shares or dividends or distributions payable with respect to Share Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying and Exchange Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying and Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying and Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying and Exchange Agent from promptly making the payments required by this Article IIIIV, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying and Exchange Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying and Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article IIIIV, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III IV with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying and Exchange Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III IV with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying and Exchange Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying and Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIIV.
(h) Whenever a dividend or other distribution is declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, and no payment in lieu of fractional shares pursuant to Section 4.1(d) will be paid to the holders of any unsurrendered Certificates or Book Entry Shares with respect to Parent Common Stock represented thereby until the holders of record of such Certificates or Book Entry Shares shall surrender such Certificates or Book Entry Shares. Subject to applicable Law, following surrender of any such Certificates or Book Entry Shares, the Paying and Exchange Agent shall deliver to the holders thereof, without interest (i) promptly after such surrender, the Cash Consideration payable and the Share Consideration payable in exchange therefor, in each case pursuant to Section 4.1(a), along with payment in lieu of fractional shares pursuant to Section 4.1(d) and the amount of any such dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such Parent Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (Cavium, Inc.), Merger Agreement (Qlogic Corp)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States commercial bank or trust company or other independent financial institution in that is reasonably satisfactory to the United States Company (the “ “Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver purpose of paying the Merger Consideration to former stockholders the holders of the Company. The Company Common Stock and Parent shall enter into a Paying Agent agreement Agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (deposit, or cause Merger Subsidiary to be deposited) deposit, with the Paying Agent, for the account benefit (from and benefit after the Effective Time) of the former holders of shares of Company Common Stock, an amount of for payment in accordance with this Section 2.03 through the Paying Agent, cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 2.02. All cash deposited with the Paying Agent pursuant to this Article III (such cash Section 2.03(a) shall herewith be referred to in this Agreement as the “Consideration Payment Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) two Business Days after following the Effective TimeClosing Date), Parent shall send, or shall cause the Paying Agent to mail send, to each stockholder whose Person who was, immediately prior to the Effective Time, a holder of record of shares were converted into the right of Company Common Stock entitled to receive payment of the Merger Consideration pursuant to Section 3.1: (i2.02(a) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent) for use in such payment.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent and of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to in respect of the provisions of this Article III, and the Book Entry Share so transferred Company Common Stock represented by a Certificate or Certificate Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall forthwith be cancelled. No interest will be paid represent after the Effective Time for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Agent, Parent and the Surviving Corporation that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after the Effective Time, there shall be no transfers on the share The stock transfer books of the Company shall be closed immediately upon the Effective Time and there shall be no further registration of the transfers of shares of Company Common Stock that were outstanding immediately prior to thereafter on the Effective Timerecords of the Company. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled canceled and exchanged for converted into the right to receive only the Merger Consideration pursuant to the extent provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund (including made available to the proceeds of any investments thereofPaying Agent pursuant to Section 2.03(a) that remains unclaimed by the former holders of shares of Company stockholders one (1) year Common Stock six months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered to Parent or otherwise on the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares instruction of Parent, and any such holder who has not theretofore complied received payment of the Merger Consideration for such converted shares of Company Common Stock in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration Consideration, in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Common Stock for any amounts paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Razor Holdco Inc.), Merger Agreement (Thermadyne Holdings Corp /De)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint VStock Transfer, LLC (or cause the “Paying Agent”) to act as paying agent in connection with the consideration to be deposited) with paid to the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable Securityholders pursuant to this Article III a paying agent agreement among Parent, Representative and Paying Agent in the form attached hereto as Exhibit B (such cash shall be referred to in this Agreement as the “Consideration FundPaying Agent Agreement”). In the event the Consideration Fund All of Paying Agent’s fees and expenses shall be insufficient borne by Parent.
(b) As soon as practicable following the date hereof, Company shall, or shall cause the Paying Agent to, send a notice, Letter of Transmittal in the form attached hereto as Exhibit C (the “Letter of Transmittal”) and acknowledgements of cancellation to pay each Company Securityholder advising such holder of the Mergers and the procedure for surrendering to the Paying Agent such holder’s certificate(s) representing Company Stock or Convertible Debt (collectively, “Exchange Documentation”) in exchange for the payment of such portion of the Aggregate Merger Consideration (including with respect to which the Company Common Stock held by stockholders who did not vote in favor Securityholders are entitled pursuant to Section 1.3. Each Company Securityholder, upon proper surrender of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds Exchange Documentation to the Paying Agent in an amount that is equal accordance with the instructions in such notice, shall be entitled to receive, in exchange therefor, the deficiency payments required by Section 1.3. Until properly surrendered, such Exchange Documentation shall be deemed for all purposes to make such paymentsevidence only the right to receive the payments required by Section 1.3. All Parent Shares will be book entry only.
(bc) Company shall deliver to Parent, at least three (3) Business Days prior to the Closing Date, a distribution schedule (the “Distribution Schedule”), setting forth Company’s calculation of how the Aggregate Merger Consideration shall be allocated among the Company Securityholders and Creditors with Unpaid Contractual Obligations, in addition to an electronic copy thereof in Microsoft Excel format. Parent shall be able to rely on, and shall have no liability to any party to this Agreement or to any Company Securityholder, Company shareholder or Company Creditor for any payment not reflected on the Distribution Schedule. The Distribution Schedule shall include:
(i) the name and address (as listed in the corporate record books of Company);
(ii) the allocation of the Aggregate Merger Consideration among the Creditors and Company Securityholders, determined in accordance with the Company Charter as in effect as of immediately prior to the Effective Time, including the allocation of any cash consideration and any Parent Shares issuable to each Company Securityholder and the allocation of the Closing Merger Consideration payable to each Creditor and Company Securityholder.
(d) At the Closing, Parent shall deposit the Closing Merger Consideration with the Paying Agent. Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail deliver to each stockholder whose shares were converted into Company Securityholder who has completed and returned the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation requisite Exchange Documentation to the Paying Agent, in each case together with Company Stock Certificates representing outstanding shares of Company Stock or original copies of the Company’s Convertible Debt notes (or an affidavit of lost instrument in form reasonably acceptable to Parent but without any bond) and any Company Creditors, the Closing Merger Consideration payable to such letter of transmittal, duly executed and completed in accordance with the instructions theretoCompany Securityholder or Creditor, and with such other documents as may be required pursuant to such instructions, the holder in any event within three (3) Business Days after return of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay documentation to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by ParentAgent; provided, however, that any such investments Parent shall be in short-term obligations of cause the United States with maturities of no more than thirty (30) days or guaranteed by Paying Agent to deliver the United States and backed by the full faith and credit of the United States. Earnings Closing Merger Consideration on the Consideration Fund in excess Closing Date to each Company Securityholder who at least three (3) Business Days prior to the Closing has completed and returned the requisite Exchange Documentation to the Paying Agent, together with Company Stock Certificates representing outstanding shares of the amounts payable to Company Stock or original copies of the Company’s former stockholders Convertible Debt notes (or an affidavit of lost instrument in form reasonably acceptable to Parent but without any bond) and any Company Creditors.
(e) Parent shall not be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment required to pay any amount of the Closing Merger Consideration Fund shall relieve Parent, the Surviving Corporation or any portion of any Earnout Payment to any Company Securityholder until receipt by the Paying Agent from promptly making such Company Securityholder of properly completed and executed Letters of Transmittal and the payments applicable Company Stock Certificate or original Convertible Debt note (or an affidavit of lost instrument in form reasonably acceptable to Parent but without any bond (except as may be required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration FundAgent)).
(df) The Parent Shares pursuant to the terms of this Agreement will be issued in a transaction exempt from registration under the Securities Act by reason of Section 4(a)(2) thereof and/or Regulation D promulgated under the Securities Act and may not be re-offered or resold other than in conformity with the registration requirements of the Securities Act and such other applicable rules and regulations or pursuant to an exemption therefrom. Until the resale by the Company Securityholders or Creditors of their Parent Shares has become registered under the Securities Act, or otherwise transferable pursuant to an exemption from such registration otherwise required thereunder, the Parent Shares issued to the Company Securityholders or Creditors shall be characterized as “restricted securities” under the Securities Act and, if certificated, shall bear the following legend (or if held in book entry form, will be noted with a similar restriction): “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, AND THE RESALE OF SUCH SHARES HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE RESOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION WITHOUT AN EXEMPTION UNDER THE SECURITIES ACT.” Parent agrees to cooperate in a timely manner with the Company Securityholders or Creditors holding registrable securities to remove any restrictive legends or similar transfer instructions from the registrable Securities upon the registration of the registrable securities or in the event that the registrable securities are otherwise transferable pursuant to an exemption from registration otherwise required thereunder.
(g) At such times and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior subject to the Effective Time. Ifterms and conditions set forth in Annex 1 hereto, as additional consideration for the Merger, and subject to the setoff rights of Parent Indemnitees pursuant to Article 7 hereof, after the Effective Time, Certificates or Book Entry Shares are presented Parent shall deliver the Earnout Payments to Paying Agent to distribute to the Surviving Corporation or Company Securityholders and Creditors in accordance with each the Paying Agent for any reasonDistribution Allocation. Any such Earnout Payments, they including, without limitation, the Accelerated Payment, shall be cancelled and exchanged payable in cash and/or Parent Shares (valued at the average closing price of Parent Shares as reported on OTC Markets (or such national or foreign securities exchange on which Parent’s shares are listed) for the Merger Consideration ten (10) trading days immediately prior to the date of issuance), pursuant to this Article IIIan allocation of 60% in cash and 40% in Parent Shares, except as unless otherwise provided agreed by LawParent and the Representative in writing.
(eh) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Until surrendered in accordance with this Agreement, each Company stockholders one (1) year Stock Certificate or Convertible Debt note shall represent after the Effective Time shallfor all purposes only the right to receive payment as provided in this Agreement.
(i) At any time following the day that is twelve (12) months after the Effective Time, the Parent shall be entitled to require the Paying Agent to deliver to it any funds (including any earnings received with respect thereto) and Parent Shares that had been made available to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III Paying Agent with respect to the Closing Merger Consideration and that have not been disbursed to Company Securityholders and thereafter such Certificates or Book Entry Shares Company Securityholders shall thereafter be entitled to look only to the Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable subject to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior Laws) and only as general creditors thereof with respect to the date on which any applicable portion of Closing Merger Consideration in respect thereof would otherwise escheat payable to or become the property of any Governmental Entity pursuant to applicable Lawthem, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofwithout interest thereon.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Aytu Bioscience, Inc), Merger Agreement (Aytu Bioscience, Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit will appoint a bank or trust company reasonably acceptable to the Company (or cause to be depositedthe “Exchange Agent”) with the Paying Agent, for the account purpose of exchanging Stock Certificates. Parent will make available to the Exchange Agent funds in amounts and benefit at the times necessary for the prompt payment of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to in accordance with this Article III Section 1.04 (such cash shall be is referred to in this Agreement as the “Consideration Exchange Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and Promptly, but in any no event within more than five (5) Business Days business days, after the Effective Time), Parent shall will send, or will cause the Paying Exchange Agent to mail send, to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) holder of a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which Stock Certificate a letter of transmittal and instructions shall be as reasonably agreed to by for use in surrendering the Company and Parent and prepared prior Stock Certificates for payment in accordance with this Section 1.04. The agreement with the Exchange Agent will provide that, upon surrender to the Closing. Upon receipt Exchange Agent of an “agent’s message” by the Paying Agent in connection such Stock Certificates, together with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, thereto and with such other documents as may be reasonably required by the Exchange Agent, the Exchange Agent will promptly pay to the persons entitled thereto, out of the Exchange Fund, a check in the amount to which such persons are entitled pursuant to such instructionsSection 1.03(b), the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject after giving effect to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIITax withholdings, and the Book Entry Share so transferred or such Stock Certificate so surrendered shall will forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any Merger Consideration cash is to be paid to a Person other than the stockholder in whose name registered holder of the Book Entry Share transferred or Certificate Stock Certificates surrendered in exchange therefor is registeredtherefor, it shall will be a condition of to such exchange payment that the Stock Certificates so surrendered be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange shall payment pay to the Paying Exchange Agent any transfer or other Taxes required by reason as a result of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred such issuance or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has Taxes have been paid or is are not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided. For purposes of this Agreement, however“Person” means an individual, that a corporation, a partnership, a limited liability company, an association, a trust, or any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days other entity or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parentorganization, the Surviving Corporation including a government or the Paying Agent from promptly making the payments required by this Article III, and following political subdivision or any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundagency or instrumentality thereof.
(d) At and after the Effective Time, there shall be no transfers on the share stock transfer books of the Company will be closed, and there will be no further registration of the transfers of shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, at or after the Effective Time, Stock Certificates or Book Entry Shares are presented to the Surviving Corporation for transfer or the Paying Agent for any reasonotherwise, they shall will be cancelled and exchanged for the Merger Consideration pursuant to in accordance with this Article III, except as otherwise provided by Law.I.
(e) Any portion of cash in the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year holders of shares of Common Stock six months after the Effective Time shallwill be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied surrendered his shares of Common Stock in accordance with this Article III with respect Section 1.04 prior to such Certificates or Book Entry Shares shall that time may thereafter look only to Parent for payment of their claim for Parent, as a general creditor thereof, to pay the Merger Consideration in respect thereof.
(f) to which such holder is entitled. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall Parent will not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Common Stock for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereoflaws.
(gf) If any Stock Certificate shall have been is lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate Stock Certificate to be lost, stolen or destroyeddestroyed and, if required by the Surviving Corporation, the Paying posting by such Person of a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made against it with respect to such Stock Certificate, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate will pay the Merger Consideration to which such Person is entitled payable in respect of such Stock Certificate pursuant to this Article IIIAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Education Lending Group Inc), Merger Agreement (Cit Group Inc)
Surrender and Payment. (a) At or prior to the ClosingParent and Target shall authorize a transfer agent, Parent shall appoint a United States commercial bank or trust company or other independent financial institution in the United States reasonably acceptable to both parties to act as exchange agent under this Agreement (the “ Paying “Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver payment of the Merger Consideration to former stockholders upon surrender of Stock Certificates and Book Entry Shares representing the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this AgreementTarget Common Shares. At or prior to the Effective Time, Parent or Merger Sub shall deposit (or cause to be deposited) with the Paying Agent, Exchange Agent for the account and benefit of the former holders of Company Target Common StockShares, cash in an amount equal to the aggregate amount of cash sufficient to pay the Merger Consideration payable to which holders of Target Common Shares shall be entitled at the Effective Time pursuant to this Article III Section 4.1 in exchange for outstanding Target Common Shares (such cash shall be amounts being hereinafter referred to in this Agreement as the “Consideration Exchange Fund”). In the event the Consideration Fund shall be insufficient The Exchange Agent shall, pursuant to pay irrevocable instructions, deliver the Merger Consideration (including with respect in exchange for surrendered Stock Certificates or Book Entry Shares pursuant to Company Common Stock held by stockholders who did not vote in favor Section 4.1 out of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCLExchange Fund. Except as contemplated by Section 4.2(d), Parent the Exchange Fund shall promptly deliver, or cause to not be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsused for any other purpose.
(b) Promptly after the Effective Time (and but in any event within five (5) Business Days after the Effective Time), Parent the Surviving Company shall cause the Paying Exchange Agent to mail send to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) holder of record of Stock Certificates or Book Entry Shares a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title with respect to the Stock Certificates or Book Entry Shares, as applicable, Shares shall pass, only upon proper delivery of the Stock Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent, and (ii) which shall be in a form reasonably acceptable to Target), and instructions for use in effecting the surrender of the Stock Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closingtherefor in accordance herewith. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or proper surrender of a Stock Certificate or Book Entry Shares for exchange and cancellation to the Paying Exchange Agent, in each case together with such properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructionsexecuted, the holder of such Stock Certificate or Book Entry Share or Certificate Shares shall be entitled to receive in exchange therefor, subject to any required withholding therefor the amount of Taxes, the Merger Consideration pursuant to the provisions of this Article IIIprovided in Section 4.1(a), and the Stock Certificate or Book Entry Share so transferred or Certificate Shares so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any portion of the Merger Consideration is to be issued or paid to a Person other than the stockholder in whose name registered holder of Target Common Shares represented by the Stock Certificates or Book Entry Share transferred or Certificate Shares surrendered in exchange therefor is registeredtherefor, it no such issuance or payment shall be a condition of such exchange that made unless (i) the Stock Certificates or Book Entry Shares so surrendered have been properly endorsed or otherwise be in proper form for transfer and (ii) the Person requesting such exchange shall pay issuance has paid to the Paying Exchange Agent any transfer or other Taxes required by reason as a result of payment of the Merger Consideration such issuance to a Person other than the stockholder owning the Book Entry Share transferred registered holder or Certificate surrendered, or shall establish to the reasonable Exchange Agent’s satisfaction of the Paying Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders holders of Target Common Shares one (1) year after the Effective Time shallshall be returned to Merger Sub, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged such holder’s Target Common Shares in accordance with this Article III with respect section prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect the Surviving Company, as a general creditor thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered exchange such Target Common Shares or to a public official pay amounts to which such holder is entitled pursuant to any applicable abandoned property, escheat or similar LawSection 4.1. If outstanding Target Common Shares are not surrendered prior to six (6) years after the Effective Time (or, in any Certificate or Book Entry Share shall not have been surrendered or transferred, respectivelyparticular case, prior to the such earlier date on which any Merger Consideration in respect thereof issuable or payable upon the surrender of such Target Common Shares would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable LawAuthority), any such the Merger Consideration in respect issuable or payable upon the surrender of such Certificate or Book Entry Target Common Shares shall, to the extent permitted by applicable Lawlaw, become the property of Parent the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, none of Parent, Merger Sub, Target or the Surviving CorporationCompany shall be liable to any holder of Target Common Shares for any amount paid, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofdelivered, to a public official pursuant to applicable abandoned property, escheat or similar laws.
(ge) If any Stock Certificate shall have been is lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be Stock Certificate is lost, stolen or destroyeddestroyed and, if required by the Surviving Company, the Paying posting by such Person of a bond in such reasonable amount as the Surviving Company may direct as indemnity against any claim that may be made against it with respect to such Stock Certificate, the Exchange Agent shall will issue in exchange for such lost, stolen or destroyed Stock Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate thereof pursuant to this Article IIIAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Alta Mesa Energy LLC), Merger Agreement (Meridian Resource Corp)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States commercial bank or trust company or other independent financial institution in that is reasonably satisfactory to the United States Company (the “ Paying “Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver purpose of paying the Merger Consideration to former stockholders the holders of the Company. The Company Common Stock and Parent shall enter into a Paying an Exchange Agent agreement Agreement with the Paying Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (deposit, or cause to be deposited) , with the Paying Exchange Agent, for the account benefit (from and benefit after the Effective Time) of the former holders of shares of Company Common Stock, an amount for payment and exchange in accordance with this Section 1.03 through the Exchange Agent, (i) book-entry shares (which, to the extent subsequently requested, shall be exchanged for certificates) representing the total number of shares of Parent Common Stock issuable as Stock Consideration and (ii) cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”)aggregate Cash Consideration. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)addition, Parent shall promptly deliverdeposit, or cause to be delivereddeposited, additional funds with the Exchange Agent, from time to the Paying Agent in an amount that is equal to the deficiency required time as needed, cash sufficient to make such payments.
(bpayments in lieu of fractional shares payable pursuant to Section 1.06(b) and to pay any dividends or other distributions payable pursuant to Section 1.03(f). All book-entry shares and cash deposited with the Exchange Agent pursuant to this Section 1.03(a) shall herewith be referred to as the “Exchange Fund”. Promptly after the Effective Time (and in any event within five (5) two Business Days after following the Effective TimeClosing Date), Parent shall send, or shall cause the Paying Exchange Agent to mail send, to each stockholder whose Person who was, immediately prior to the Effective Time, a holder of record of shares were converted into the right of Company Common Stock entitled to receive payment of the Merger Consideration pursuant to Section 3.1: (i1.02(a) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Exchange Agent) for use in such payment.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent and of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to in respect of the provisions of this Article III, and the Book Entry Share so transferred Company Common Stock represented by a Certificate or Certificate Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall forthwith be cancelled. No interest will be paid represent after the Effective Time for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after the Effective Time, there shall be no transfers on the share The stock transfer books of the Company shall be closed immediately upon the Effective Time and there shall be no further registration of the transfers of shares of Company Common Stock that were outstanding immediately prior to thereafter on the Effective Timerecords of the Company. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Surviving Corporation or the Paying Exchange Agent for any reason, they shall be cancelled canceled and exchanged for converted into the right to receive only the Merger Consideration pursuant to the extent provided for, and in accordance with and subject to the procedures set forth, in this Article III, except as otherwise provided by Law1.
(e) Any portion of the Merger Consideration Fund (including made available to the proceeds of any investments thereofExchange Agent pursuant to Section 1.03(a) that remains unclaimed by the former holders of shares of Company stockholders one (1) year Common Stock six months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered to Parent or otherwise on the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares instruction of Parent, and any such holder who has not theretofore complied exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Article III with respect Section 1.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration Consideration, in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Common Stock for any amounts paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If any Certificate shall have been lost, stolen No dividends or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time, and no payment in lieu of fractional shares pursuant to Section 1.06(b), will be paid to the Paying Agent) by holders of any unsurrendered Certificates or Uncertificated Shares with respect to the Person claiming shares of Parent Common Stock issuable upon surrender thereof until the holder of such certificate Certificates or Uncertificated Shares shall surrender such Certificates or Uncertificated Shares in accordance with the terms of this Section 1.03. Subject to be lostApplicable Law, stolen promptly following the surrender of any such Certificates or destroyedUncertificated Shares, the Paying Exchange Agent shall issue in exchange for deliver to the holders thereof, without interest, any dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such lostwhole shares of Parent Common Stock and, stolen at the appropriate payment date, the amount of dividends or destroyed Certificate other distributions with a record date after the Merger Consideration Effective Time but prior to which such Person is entitled in surrender and a payment date subsequent to such surrender payable with respect to such whole shares of such Certificate pursuant to this Article IIIParent Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (Rehabcare Group Inc), Merger Agreement (Kindred Healthcare, Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent Acquirer shall appoint an exchange agent reasonably acceptable to the Target (the “Exchange Agent”) to act as the agent for the purpose of exchanging for the Per Share Merger Consideration for: (i) the Certificates, or (ii) book-entry shares which immediately prior to the Effective Time represented the shares of Target Common Stock (the “Book-Entry Shares”). On and after the Effective Time, Acquirer shall deposit (or cause to be deposited) with the Paying Exchange Agent, for the account and benefit sufficient shares of the former holders of Company Acquirer Common Stock, an amount of cash sufficient Stock to pay the aggregate Per Share Merger Consideration that is payable pursuant to this Article III in respect of all of the shares of Target Common Stock represented by the Certificates and the Book-Entry Shares (such cash shall be referred to in this Agreement as the “Consideration Payment Fund”)) in amounts and at the times necessary for such payments. In If for any reason (including losses) the event the Consideration Payment Fund shall be insufficient is inadequate to pay the Merger Consideration (including with respect amounts to Company which holders of shares shall be entitled under Section 2.01(b), Acquirer shall take all steps necessary to promptly to deposit in trust additional shares of Acquirer Common Stock held by stockholders who did with the Exchange Agent sufficient to make all payments required under this Agreement, and Acquirer and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not vote in favor be used for any other purpose. The Acquirer shall pay all charges and expenses, including those of the Merger but who did not exerciseExchange Agent, or who shall have effectively withdrawn or lost, their rights to appraisal in connection with the exchange of such Company shares of Target Common Stock under for the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Per Share Merger Consideration. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Acquirer shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Target Common Stock at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of shares of Target Common Stock that have been converted into the surrender right to receive the Per Share Merger Consideration shall be entitled to receive the Per Share Merger Consideration in respect of the Certificates Target Common Stock represented by a Certificate or transfer Book-Entry Share upon (i) surrender to the Exchange Agent of the Book Entry Shares in exchange for payment of the Merger Considerationa Certificate, the form together with a duly completed and substance of which validly executed letter of transmittal and instructions shall such other documents as may reasonably be as reasonably agreed to requested by the Company and Parent and prepared prior to the Closing. Upon Exchange Agent, or (ii) receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of Book-Entry Shares. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 2.03, each such Certificate or Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive the Per Share Merger Consideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of a Book any Certificate or Book-Entry Share. Upon payment of the Per Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIIII, and the Book Entry Share so transferred each Certificate or Certificate Certificates so surrendered shall forthwith immediately be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any portion of the Per Share Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At All Per Share Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Target Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers of shares of Target Common Stock on the share stock transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeSurviving Corporation. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Per Share Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by LawII.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one holders of Shares six (16) year months after the Effective Time shallshall be returned to Acquirer, upon demand, and any such holder who has not exchanged shares of Target Common Stock or Target Preferred Stock for the Per Share Merger Consideration in accordance with this Section 2.02 prior to that time shall thereafter look only to Acquirer for payment of the Per Share Merger Consideration. Notwithstanding the foregoing, Acquirer shall not be liable to any holder of shares of Target Common Stock or Target Preferred Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Target Common Stock or Target Preferred Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, be delivered to Parent the property of Acquirer free and clear of any claims or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment interest of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(f) Notwithstanding Any portion of the foregoing, neither Merger Consideration made available to the Paying Exchange Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered any Dissenting Shares shall be returned to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyedAcquirer, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIdemand.
Appears in 2 contracts
Samples: Merger Agreement (Vaporin, Inc.), Merger Agreement (Vapor Corp.)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent Merger Sub shall appoint a United States bank or trust company company, that has been approved in advance by the Company (which approval shall not be unreasonably withheld, delayed or other independent financial institution in the United States conditioned), to act as disbursing agent (the “ Paying “Disbursing Agent”) that is reasonably acceptable for the payment of Merger Consideration upon surrender of certificates representing the shares of Company Common Stock. Prior to the Company to actEffective Time, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall Merger Sub will enter into a Paying Agent disbursing agent agreement with the Paying AgentDisbursing Agent and, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent at or essentially simultaneously with the terms of this Agreement. At or prior to the Effective Time, Parent shall cause Merger Sub to deposit with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 2.06(b) to and for the benefit of holders of shares of Company Common Stock (or cause such amounts being hereinafter referred to as the “Exchange Fund”), with such cash to be deposited) with held in trust by the Paying Disbursing Agent, pursuant to the terms of the disbursing agent agreement referenced above, for the account and benefit of such holders of such shares. The Disbursing Agent shall invest the former Exchange Fund as directed by Merger Sub; provided that any such investments shall be limited to (i) direct short-term obligations of the United States of America, or (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest; provided, further, that no loss thereon or thereof shall affect the amounts payable to holders of shares of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable Stock pursuant to this Article III (Section 2.06(b). Any interest and other income resulting from such cash investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 2.06(b) shall be referred promptly paid to in this Agreement as the “Consideration Fund”)Parent. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exerciseSub shall, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), and Parent shall cause Merger Sub to, promptly deliver, or cause to be delivered, additional funds replenish the Exchange Fund to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsextent of any investment losses.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days As soon as reasonably practicable after the Effective Time), Parent but in any event no later than the third (3rd) Business Day thereafter, the Disbursing Agent shall cause the Paying Agent to mail to each stockholder whose Person who was a record holder as of the Effective Time of shares of Company Common Stock which were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) 2.06(b), a form of letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, outstanding certificate(s) which immediately prior to the Effective Time represented shares of Company Common Stock (the “Certificates”) shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Disbursing Agent and, in the case of non-certificated shares represented by book-entry which immediately prior to the Effective Time represented shares of Company Common Stock (the “Book-Entry Shares”), delivery shall be effected only after complying with reasonable delivery procedures established by the Disbursing Agent and (iireasonably acceptable to the Company, and shall be in such form and have such other provisions as are reasonable and customary in transactions such as the Merger) and instructions for use in effecting the surrender of the Certificates or transfer of the Book Book-Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate to the Disbursing Agent for cancellation to or compliance with the Paying Agentreasonable procedures established by the Disbursing Agent for delivery of Book-Entry Shares, in each case together with such letter of transmittal, transmittal duly executed and completed in accordance with the instructions thereto, and with such other documents as may be reasonably required pursuant to such instructionsby the Disbursing Agent, the holder of such Book Certificate or Book-Entry Share or Certificate Shares shall be entitled to receive in exchange therefortherefor a check in an amount equal to the product of (x) the number of shares of Company Common Stock represented by such holder’s properly surrendered Certificates or Book-Entry Shares multiplied by (y) the Merger Consideration, subject to less any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book such Certificate and Book-Entry Share so transferred or Certificate so surrendered Shares shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender of the Certificates or Book-Entry Shares.
(c) If any Merger Consideration payment is to be paid made to a Person other than the stockholder Person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall payment pay to the Paying Agent any transfer or other Taxes taxes required by reason of the payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Entry Share transferred Certificate surrendered or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax has been paid or is not applicable.
(cd) The cash Until surrendered in accordance with the Consideration Fund shall be invested provisions of this Section 2.07, each Certificate or Book-Entry Share (other than Certificates or Book-Entry Shares representing shares of Company Common Stock owned by Parent, Merger Sub or any other wholly-owned Subsidiary of Parent, shares of Company Common Stock held by the Paying Agent as directed by Parent; provided, however, that Company or any such investments shall be in shortwholly-term obligations owned Subsidiary of the United States with maturities of no more than thirty (30Company and Dissenting Shares) days or guaranteed by the United States shall represent for all purposes, from and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at after the Effective Time in Time, only the amount of such losses right to receive the extent the funds in the Consideration Fund are insufficient for such purposesapplicable Merger Consideration, which additional funds will be deemed to be part of the Consideration Fundwithout interest.
(de) At and after the Effective Time, there shall be no registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that 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 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. The Merger Consideration paid upon the surrender of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock previously represented by such Certificates or Book-Entry Shares. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they such Certificates or Book-Entry Shares shall be cancelled and exchanged for the Merger Consideration pursuant to cash as provided in this Article IIIII. At the close of business on the day of the Effective Time, except as otherwise provided by Lawthe stock ledger of the Company shall be closed.
(ef) Any portion of the Merger Consideration Fund made available to the Disbursing Agent to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to Parent upon demand. At any time more than six (including the proceeds of any investments thereof6) that remains unclaimed by the former Company stockholders one (1) year months after the Effective Time shallTime, the Disbursing Agent shall upon demand of Parent deliver to it any funds which had been made available to the extent permitted Disbursing Agent and not disbursed in exchange for Certificates and Book-Entry Shares (including all interest and other income received by applicable Lawthe Disbursing Agent in respect of all such funds). Thereafter, be delivered any former holders of shares of Company Common Stock shall look only to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with (subject to the terms of this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoingAgreement, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or and other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior Laws) as general creditors thereof with respect to the date on which any Merger Consideration in respect thereof that may be payable, without interest, upon due surrender of the Certificates or Book-Entry Shares held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable LawEntity, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder Person previously entitled thereto. Notwithstanding the foregoing, none of such Parent, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or Book Book-Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for any Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled delivered in respect of such Certificate or Book-Entry Share to a public official pursuant to this Article IIIany abandoned property, escheat or other similar Law.
Appears in 2 contracts
Samples: Merger Agreement (Agrium Inc), Merger Agreement (Uap Holding Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint Citibank, N.A. or any other bank or trust company which shall be approved by the Company (such approval not to be unreasonably withheld, conditioned or delayed) (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) non-certificated Shares represented by book entry (the “Uncertificated Shares”). Prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of holders of Shares and ADSs, a cash amount in immediately available funds sufficient for the Exchange Agent to make payments under Sections 2.02(a) and 2.02(b) (such aggregate cash amount being hereinafter referred to as the “Exchange Fund”), in respect of the Certificates and the Uncertificated Shares. If any Dissenting Shareholder withdraws or loses its dissenter’s rights pursuant to the Section 238 of the Cayman Companies Law with respect to any Dissenting Shares, such Shares shall not be subject to Section 2.09 and Parent shall promptly deposit, or cause to be deposited) with , into the Paying AgentExchange Fund, for a cash amount in immediately available funds equal to the account and benefit product of the former holders number of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable such Shares for which such shareholder has lost its dissenter’s rights pursuant to this Article III (such the Cayman Companies Law, multiplied by the Per Share Merger Consideration. If for any reason following the Effective Time the cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Exchange Fund shall be is insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor fully satisfy all of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights payment obligations to appraisal of such Company Common Stock under be made in cash by the DGCL)Exchange Agent hereunder, Parent or the Surviving Company shall promptly deliver, deposit or cause to be delivered, additional deposited cash in immediately available funds to into the Paying Agent Exchange Fund in an amount that which is equal to the deficiency in the amount of cash required to make fully satisfy such payments.
(b) cash payment obligations. Promptly after the Effective Time (and in any event within five three (53) Business Days after the Effective TimeDays), Parent shall cause the Paying Exchange Agent to mail send to each stockholder whose shares were converted into Person who was, at the right Effective Time, a registered holder of Shares entitled to receive the Per Share Merger Consideration pursuant to Section 3.1: (iSection 2.02(a) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicableexchange.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Shanda Interactive Entertainment LTD), Merger Agreement (Ku6 Media Co., LTD)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint will enter into an agreement with a United States bank or trust company approved by the Company (such approval not to be unreasonably withheld, conditioned or other independent financial institution in the United States delayed) to act as a payment agent (the “ “Paying Agent”) that is for holders of shares of Common Stock in connection with the transactions contemplated by this Agreement. The Paying Agent agreement pursuant to which Parent will appoint the Paying Agent will be in a form and substance reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (will deposit, or cause to be deposited) , in trust with the Paying Agent, Agent in a separate account for the account and benefit of the former holders of Company shares of Common Stock, an amount of cash in United States dollars sufficient to pay the Merger Consideration in exchange for all of the shares of Common Stock outstanding immediately prior to the Effective Time (other than the Excluded Shares, Dissenting Shares and Continuing Shares), payable upon due surrender of Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) or Book-Entry Shares pursuant to the provisions of this Article III (such cash shall be being referred to in this Agreement as the “Consideration Payment Fund”). In If the event the Consideration Payment Fund shall be is insufficient to pay make the Merger Consideration (including with respect to Company Common Stock held payments contemplated by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCLSection 2.6(a), Parent shall promptly deliverwill, or will cause to be deliveredthe Merger Sub or the Surviving Corporation to, promptly deposit additional funds to with the Paying Agent in an amount that is equal to the deficiency required sufficient to make such payments. The Payment Fund will not be used for any purpose other than as expressly provided for in this Agreement.
(b) Promptly As soon as reasonably practicable after the Effective Time (and in any event within five (5) not later than the second Business Days after Day following the Effective Time)Closing Date, Parent shall cause the Surviving Corporation will instruct the Paying Agent to mail to each stockholder whose holder of record of shares were of Common Stock converted into the right to receive the portion of the Merger Consideration payable in respect thereof pursuant to Section 3.1: 2.6 (i) a letter of transmittal, in customary form, that shall which will specify that delivery of such Certificates or transfer of such Book Entry Shares shall will be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall will pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereofthereof as provided in Section 3.2) or transfer of the Book Book-Entry Shares to the Paying Agent and will be in such form and have such other provisions as Parent and the Company may mutually agree and (ii) instructions for use in effecting the surrender of the Certificates (or transfer affidavits of the Book loss in lieu thereof as provided in Section 3.2) or Book-Entry Shares in exchange for payment the portion of the Merger Consideration, the form and substance Consideration payable in respect thereof.
(c) Upon surrender of which letter Certificates (or affidavits of transmittal and instructions shall be loss in lieu thereof as reasonably agreed provided in Section 3.2) or Book-Entry Shares to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and with such other documents as may customarily be required pursuant to such instructionsby the Paying Agent, the holder of such Book Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) or Book-Entry Share or Certificate shall Shares will be entitled to receive from the Payment Fund in exchange therefor, subject therefor an amount in cash equal to any required withholding the product of Taxes, (i) the number of shares represented by such holder’s properly surrendered Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) or Book-Entry Shares and (ii) the Per Share Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled(less any applicable withholding Taxes). No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. on any amount payable upon due surrender of Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) or Book-Entry Shares.
(d) If any Merger Consideration payment is to be paid made to a Person other than the stockholder Person in whose name the Book a surrendered Certificate or Book-Entry Share transferred or Certificate surrendered in exchange therefor Shares is registered, it shall will be a condition of such exchange payment that the Person requesting such exchange shall payment will pay to the Paying Agent any transfer or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book surrendered Certificate or Book-Entry Share transferred Shares or Certificate surrendered, or shall will establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash payable. If any portion of the Merger Consideration is to be registered in the Consideration Fund shall name of a Person other than the Person in whose name a surrendered Certificate or Book-Entry Shares is registered, it will be invested by a condition to the Paying Agent as directed by Parent; provided, however, registration thereof that any such investments shall the surrendered Certificate or Book-Entry Shares will be properly endorsed or otherwise be in short-term obligations proper form for transfer and that the Person requesting such delivery of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Merger Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds will pay to the Paying Agent for any transfer or other similar Taxes required as a result of such registration in the benefit name of a Person other than the registered holder of such Certificate or Book-Entry Shares or establish to the satisfaction of the Company’s stockholders at Paying Agent that such Tax has been paid or is not payable.
(e) After the Effective Time, there will be no further registration of transfers of shares of Common Stock outstanding prior to the Effective Time other than as provided for in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At Section 2.6(d). From and after the Effective Time, there shall be no transfers on the share transfer books holders of the Company of the shares of Company Common Stock that were Certificates and Book-Entry Shares outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented Time will cease to the Surviving Corporation or the Paying Agent for have any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant rights with respect to this Article III, such shares of Common Stock except as otherwise provided in this Agreement or by applicable Law. Notwithstanding anything to the contrary contained in this Agreement, the Surviving Corporation will be obligated to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company with respect to shares of Common Stock prior to the date of this Agreement and which remain unpaid at the Effective Time.
(ef) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders holders of shares of Common Stock one (1) year after the Effective Time shall, will be returned to the extent permitted by applicable LawSurviving Corporation, be delivered upon demand, and any such holder who has not exchanged such holder’s shares of Common Stock for the Per Share Merger Consideration in accordance with this Article III prior to Parent or that time will thereafter look only to the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment delivery of their claim for the Per Share Merger Consideration in respect thereofof such holder’s shares of Common Stock.
(fg) Notwithstanding Neither Parent, the foregoing, neither Surviving Corporation nor the Paying Agent nor any party hereto shall will be liable to any Person in respect former holder of cash from Common Stock for any portion of the Merger Consideration Fund delivered to a public official any Government Authority pursuant to any applicable abandoned property, escheat or similar Law. If In the event any Certificate or Book Book-Entry Share shall Shares have not have been surrendered or transferred, respectively, prior to the date on as of which any the Merger Consideration payable in respect thereof of such Certificate or Book-Entry Shares would otherwise escheat to or otherwise become the property of any Governmental Entity pursuant to applicable LawAuthority, any Parent, the Surviving Corporation and the Paying Agent will comply with such Laws and the portion of the Merger Consideration in respect otherwise payable upon the surrender of such Certificate or Book Book-Entry Shares shall, will be treated for all purposes under this Agreement as having been paid to the extent permitted holder of the shares of Common Stock represented by applicable Lawsuch Certificate or Book-Entry Shares.
(h) The Paying Agent will invest all cash included in the Payment Fund as directed by Parent; provided that any investment of such cash will be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the United States of America in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5 billion, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing and, in any such case, no such instrument will have a maturity exceeding three months, and that no such investment or loss thereon will affect the amounts payable to holders of Certificates or Book-Entry Shares pursuant to this Article III. Any interest and other income resulting from such investments will become part of the property Payment Fund, and any amount in excess of the amounts payable under Section 3.1(a) will be promptly returned to Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III as requested by Parent. To the extent that there are losses with respect thereto shall thereafter look only to Parent such investments, or the Payment Fund diminishes for payment other reasons below the level required to make prompt payments of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration as contemplated hereby, Parent will promptly replace or restore, or will promptly cause to which be replaced or restored, the portion of the Payment Fund lost through investments or other events so as to ensure that the Payment Fund is, at all times, maintained at a level sufficient to make such Person is entitled in respect of such Certificate pursuant to this Article IIIpayments.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Usg Corp), Merger Agreement (Gebr. Knauf Verwaltungsgesellschaft Kg)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint an agent (the "Exchange Agent") reasonably acceptable to the Company for the purpose of exchanging certificates representing shares of Company Stock (the "Certificates") for the Merger Consideration. At the Effective Time, Parent will deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay Exchange Agent the Merger Consideration payable pursuant to this Article III (such cash shall be referred to paid in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal shares of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Stock. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Parent will send, or will cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) Time a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of shares of Company Stock that have been converted into the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of right to receive the Merger ConsiderationConsideration will be entitled to receive, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant in respect of each share of Company Stock represented by such Certificate. Until so surrendered, each such Certificate shall represent after the Effective Time for all purposes only the right to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share transferred or surrendered Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeStock. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law3.
(e) Any portion of the Merger Consideration Fund made available to the Exchange Agent pursuant to Section 3.03(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former holders of shares of Company stockholders Stock one (1) year after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged shares of Company Stock for the Merger Consideration in accordance with this Article III with respect Section 3.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Stock for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate Any amounts remaining unclaimed by holders of shares of Company Stock three years after the Effective Time (or Book Entry Share shall not have been surrendered or transferred, respectively, such earlier date immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallgovernmental authority) shall become, to the extent permitted by applicable Lawlaw, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Central Newspapers Inc), Merger Agreement (Gannett Co Inc /De/)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank Continental Stock Transfer & Trust Company as the exchange agent (or trust company or such other independent financial institution in nationally recognized exchange agent agreed to between the United States parties) (the “ Paying “Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, act as paying agent for the Merger and Company’s stockholders who shall become entitled to deliver the Merger Consideration receive funds pursuant to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement, including as agent for the purpose of exchanging for the Per Share Merger Consideration, certificates representing shares of Company Common Stock (the “Certificates;” provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock). At or prior to the Effective Time, Parent shall deposit (deposit, or shall cause to be deposited) , with the Paying Agent, for Exchange Agent the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the aggregate Per Share Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Payment Fund”). In To the event extent such fund diminishes for any reason below the Consideration Fund shall be insufficient level required to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor make prompt payment of the aggregate Per Share Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)Consideration, Parent and the Surviving Corporation shall promptly deliverreplace or restore, or cause to be deliveredreplaced or restored, additional funds the lost portion of such fund so as to the Paying Agent in an amount ensure that is equal to the deficiency required it is, at all times, maintained at a level sufficient to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Payment Fund shall be invested by the Paying Exchange Agent as directed by Parent; provided, howeverthat (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of the aggregate Per Share Merger Consideration payable hereunder, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of any such losses, (ii) no such investment shall have maturities that any could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days days, or guaranteed by the United States by, and backed by the full faith and credit of of, the United States. Earnings on the Consideration Fund in excess Any and all interest or other amounts earned with respect to such funds shall become part of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent Payment Fund and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, to the Surviving Corporation on the earlier of twelve (12) months after the Effective Date or the Paying Agent from promptly making full payment of the payments required by this Article IIIaggregate Per Share Merger Consideration. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock and the payment of the Per Share Merger Consideration in respect of such shares. Promptly after the Effective Time, and following in any losses from any such investmentevent no later than three (3) Business Days after the Effective Time, Parent shall promptly provide additional cash funds send, or shall cause the Exchange Agent to the Paying Agent for the benefit send, to each record holder of the Company’s stockholders shares of Company Common Stock at the Effective Time whose shares were converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent for use in such exchange).
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Per Share Merger Consideration shall be entitled to receive the Per Share Merger Consideration in respect of each share of Company Common Stock represented by a Certificate, promptly, upon (i) surrender to the Exchange Agent of a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the amount case of a book-entry transfer of shares of Company Common Stock, and, in each case, delivery to the Exchange Agent of such losses other documents as may reasonably be requested by the Exchange Agent. Until so surrendered or transferred, each such Certificate shall represent after the Effective Time for all purposes only the right to receive such Per Share Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(c) If any portion of the Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall pay to the extent Exchange Agent any transfer or other Tax required as a result of such payment to a Person other than the funds in registered holder of such Certificate or establish to the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part satisfaction of the Consideration FundExchange Agent that such Tax has been paid or is not payable.
(d) At All Per Share Merger Consideration paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to on the Effective Timestock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Per Share Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders one Common Stock twelve (112) year months after the Effective Time shall, shall be delivered to the extent permitted by applicable LawSurviving Corporation, be delivered upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Per Share Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to Parent or the Surviving Corporation for no considerationpayment of the Per Share Merger Consideration, without interest. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to amounts remaining unclaimed by such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on holders at such time at which any Merger Consideration in respect thereof such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent or the Surviving Corporationits designee, free and clear of all claims or interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Del Taco Restaurants, Inc.), Merger Agreement (Jack in the Box Inc /New/)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after Time, the Surviving Corporation shall cause to be mailed to each record holder, as of the Effective Time, of certificates representing outstanding shares of Company Common Stock (“Company Certificates”) or shares of Company Common Stock represented by book-entry (“Company Book-Entry Shares”) (other than such holders who properly made a Cash Election, Stock Election or Combination Election with respect to such Company Certificates or Company Book-Entry Shares in accordance with Section 3.1 and other than Dissenting Shares), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Company Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Company Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Exchange Agent or, in the case of Company Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) and (ii) instructions for use in effecting the surrender of the Company Certificates or transfer or, in the case of Company Book-Entry Shares, the Book Entry Shares in exchange surrender of such shares for payment of the Merger ConsiderationConsideration therefor. After the Effective Time, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent upon surrender in accordance with this Section 3.4(a) or in connection with a Form of Election delivered pursuant to Section 3.1(d), to the transfer Exchange Agent of a Book Company Certificate or Company Book-Entry Share or surrender of a Certificate for cancellation to the Paying AgentShares, in each case together with such letter of transmittaltransmittal or a Form of Election pursuant to Section 3.1(d), duly completed and validly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the Exchange Agent shall promptly deliver to the holder of such Book Company Certificate or Company Book-Entry Share or Certificate shall be entitled to receive Shares in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration to be received by the holder thereof pursuant to the provisions of this Article III, and the Book Entry Share so transferred Agreement. The Exchange Agent shall accept such Company Certificates or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Company Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of Company or its transfer agent of shares of Company Common Stock and, if Company Certificates in connection withor Company Book-Entry Shares are presented to Company for transfer, or accrued on, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be paid to issued in a Person name other than that in which the stockholder in whose name the Book Entry Share transferred or Company Certificate surrendered in for exchange therefor is registered, it shall be a condition of such exchange that the Person Company Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Paying Agent Company or its transfer agent any transfer or other Taxes taxes required by reason of payment the issuance of the Merger Consideration to in a Person name other than that of the stockholder owning registered holder of the Book Entry Share transferred or Company Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.4(a), each Company Certificate and each Company Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.1.
(b) No dividends or other distributions with respect to shares of Acquiror Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Certificate or Company Book-Entry Share with respect to the shares of Acquiror Common Stock to be received in respect thereof and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.4(d), in each case until the surrender of such Company Certificate or Company Book-Entry Share in accordance with this Article 3. Subject to the effect of applicable laws (including but not limited to applicable abandoned property, escheat or other similar laws), following surrender of any such Company Certificate or Company Book-Entry Share, there shall be paid to the holder of such Company Certificate or Company Book-Entry Share, without interest, (i) at the time of such surrender, the amount of any cash payable in lieu of fractional shares of Acquiror Common Stock to which such holder is entitled pursuant to Section 3.4(d) and any dividends or other distributions with a record date after the Effective Time theretofore paid with respect to whole shares of Acquiror Common Stock to which such holder is entitled pursuant to this Agreement, and (ii) at the appropriate payment date, any dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of Acquiror Common Stock.
(c) The cash Merger Consideration paid upon the surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations terms of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following 3 (including any losses from any such investment, Parent cash paid pursuant to Section 3.4(d)) shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part have been issued (and paid) in full satisfaction of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of all rights pertaining to the shares of Company Common Stock that were outstanding immediately prior so exchanged.
(i) No new Company Certificates or scrip representing fractional shares of Acquiror Common Stock shall be issued in connection with the Merger and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a stockholder of Company after the Merger, and (ii) notwithstanding any other provision of this Agreement, each holder of shares of Company Common Stock exchanged pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of Acquiror Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest rounded up to the nearest whole cent) determined by multiplying the fractional share interest to which such holder would otherwise be entitled by the closing price for a share of Acquiror Common Stock as reported on the NYSE Composite Transactions Tape on the trading day immediately preceding the date on which the Effective Time. If, Time occurs.
(e) At any time following the date which is nine months after the Effective Time, Acquiror shall be entitled to require the Exchange Agent to deliver to it any Acquiror Common Stock or funds (including any interest received with respect thereto) which have been made available to the Exchange Agent and which have not been disbursed to holders of Company Certificates or Book Company Book-Entry Shares are presented and thereafter such holders shall be entitled to look to Acquiror and the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the applicable Merger Consideration payable upon due surrender of their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration. None of Acquiror, Surviving Corporation, any subsidiary or Affiliate of Acquiror or Surviving Corporation or the Paying Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person former holder of Company Common Stock for cash, shares of Acquiror Common Stock (or dividends or distributions in respect thereof) or cash in lieu of cash from the Consideration Fund fractional shares of Acquiror Common Stock delivered to a public official officials pursuant to any applicable abandoned property, escheat or other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereoflaws.
(gf) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate Company Certificate to be lost, stolen or destroyeddestroyed and, if requested by the Surviving Corporation, the Paying posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Company Certificate, the Exchange Agent shall issue will pay, in exchange for such lost, stolen or destroyed Certificate Company Certificate, the Merger Consideration to which such Person is entitled be paid in respect of the shares of Company Common Stock represented by such Certificate pursuant to this Article IIICompany Certificate.
Appears in 2 contracts
Samples: Merger Agreement (Titan Corp), Merger Agreement (Lockheed Martin Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint a bank or trust company reasonably acceptable to the Company to act as disbursing agent (the “Disbursing Agent”) for the purpose of receiving and exchanging the payment of Merger Consideration for the benefit of the Company stockholders upon surrender of certificates representing the Shares. The Disbursing Agent shall also act as the agent for the Company stockholders for the purpose of holding the certificates representing the Shares and shall obtain no rights or interests in the Shares represented by such certificates. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.6(b), Parent shall deposit (or cause to be deposited) deposited with the Paying Agent, for Disbursing Agent cash in an aggregate amount necessary to make the account and benefit of the former payments pursuant to Section 3.6(b) to holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III Shares (such cash shall be amounts being hereinafter referred to in this Agreement as the “Consideration Exchange Fund”). In For purposes of determining the event the Consideration Fund aggregate amount to be so deposited, Parent and Merger Subsidiary shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by assume that no stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights Company will perfect any right to appraisal of his, her or its Shares. The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such Company Common Stock investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) commercial paper rated the highest quality by either Xxxxx’x Investors Services, Inc. or Standard & Poor’s Corporation or (iv) a combination of any of the foregoing; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.6(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under the DGCL)Section 3.6(b) shall be promptly paid to Parent. If for any reason (including losses) such funds are inadequate to pay all amounts to which holders of Shares shall be entitled hereunder, Parent shall promptly deliver, deposit or cause to be delivered, deposited additional funds to cash with the Paying Disbursing Agent in an amount that is equal to the deficiency required sufficient to make such paymentsall payments required under this Agreement, and Parent and the Merger Subsidiary shall in any event be liable for payment thereof. The Exchange Fund shall not be used for any other purpose. Parent shall bear and pay all charges and expenses, including those of the Disbursing Agent, incurred in connection with the exchange of Shares and the Exchange Fund.
(b) Promptly after Parent shall cause the Effective Time (and in any event within five (5) Business Days Disbursing Agent to mail promptly after the Effective Time, but in no event later than the third (3rd) Business Day thereafter, to each Person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the “Certificates”), Parent shall cause the Paying Agent to mail to each stockholder and whose shares Shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: 3.6(b), (i) a form of letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Disbursing Agent) and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentDisbursing Agent for cancellation, in each case together with such letter of transmittal, transmittal duly executed and completed in accordance with the instructions thereto, and with such other documents as may be reasonably required pursuant to such instructionsby the Disbursing Agent, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefortherefor the Merger Consideration payable in respect of that Certificate, subject to less any required withholding of Taxes, to be mailed within five (5) Business Days of the Merger Consideration pursuant to receipt of such Certificate and executed letter of transmittal by the provisions of this Article IIIDistributing Agent, and the Book Entry Share so transferred or such Certificate so surrendered shall forthwith be cancelledcanceled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender of the Certificates.
(c) If payment of any portion of the Merger Consideration is to be paid made to a Person other than the stockholder Person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of payment of such exchange Merger Consideration that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall payment pay to the Paying Agent any transfer or other Taxes required by reason of the payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Entry Share transferred Certificate surrendered or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax has been paid or is not applicable.
(cd) The cash Until surrendered in accordance with the Consideration Fund shall be invested provisions of this Section 3.7, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Shares held by the Paying Agent as directed by Parent; providedCompany and Dissenting Shares) shall represent for all purposes, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States from and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at after the Effective Time in Time, only the amount of right to receive the applicable Merger Consideration for each Share formerly represented by such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration FundCertificate.
(de) At and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that Shares 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 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. The Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they such Certificates shall be cancelled and exchanged for represent the right to receive the Merger Consideration pursuant to as provided in this Article III. At the close of business on the day of the Effective Time, except as otherwise provided by Lawthe stock ledger of the Company shall be closed.
(ef) Any portion of the Merger Consideration Fund made available to the Disbursing Agent to pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand by Parent. At any time more than eighteen (including the proceeds of any investments thereof18) that remains unclaimed by the former Company stockholders one (1) year months after the Effective Time shallTime, the Disbursing Agent shall upon demand of Parent deliver to it any funds which had been made available to the extent permitted Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by applicable Lawthe Disbursing Agent in respect of all such funds). Thereafter, be delivered holders of Certificates shall look only to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with (subject to the terms of this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoingAgreement, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or and other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior Laws) as general creditors thereof with respect to the date on which any Merger Consideration in respect thereof that may be payable, without interest, upon due surrender of the Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Lawgovernmental unit or agency, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder Person previously entitled thereto. Notwithstanding the foregoing, none of such Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for any Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled delivered in respect of such Certificate of Shares to a public official pursuant to this Article IIIany abandoned property, escheat or other similar Law.
Appears in 2 contracts
Samples: Merger Agreement (Dune Energy Inc), Merger Agreement (Eos Petro, Inc.)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States enter into an agreement with the Company’s transfer agent or another bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is designated by Parent and reasonably acceptable to the Company to act, among other things, act as paying agent for in connection with the Merger and (the “Paying Agent”) to deliver receive the Merger Consideration to former stockholders which shareholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of become entitled pursuant to this AgreementArticle II. At or prior to immediately after the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, Agent cash in an amount of cash sufficient to pay the Merger Consideration payable make all payments pursuant to this Article III II owed in respect of Shares represented by Certificates or Book-Entry Shares issued and outstanding immediately prior to the Effective Time (such cash shall be being hereinafter referred to in this Agreement as the “Consideration Payment Fund”). In the event the Consideration The Payment Fund shall not be insufficient used for any purpose other than to fund payments due pursuant to this Article II, except as provided in this Agreement. The Surviving Corporation shall pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor all charges and expenses of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to connection with the deficiency required to make such paymentsexchange of Shares for the Merger Consideration contemplated by this Article II.
(b) Promptly after The Surviving Corporation shall direct the Effective Time (Paying Agent to mail, as promptly as practicable and in any no event within no later than five (5) Business Days after following the Closing, to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”), and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), that immediately prior to the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 3.1: 2.1(a), (i) a letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Book-Entry Shares, as applicable, Shares held by such Person shall pass, only upon (x) adherence to the procedures set forth in the letter of transmittal and (y) in the case of Shares represented by Certificates, only upon proper delivery of the such Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Agent, and shall be in such form and have such other provisions as Parent and Company may reasonably agree on) and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book and Book-Entry Shares in exchange for payment of the Merger ConsiderationConsideration payable with respect thereto pursuant to Section 2.1(a), the in each case in form and substance reasonably acceptable to the Company. Surrender of which letter of transmittal and instructions any Book-Entry Shares shall be as reasonably agreed effected in accordance with the Paying Agent’s customary procedures with respect to securities represented by the Company and Parent and prepared prior to the Closingbook entry. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation or Book-Entry Share to the Paying Agent, in each case together with such letter of transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and with such other documents as may reasonably be required pursuant to such instructionsby the Paying Agent, the holder of such Book Certificate or Book-Entry Share or Certificate shall be entitled to receive in exchange therefor, therefor the Merger Consideration for each Share formerly represented by such Certificate or each Book-Entry Share so surrendered (subject to deduction for any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIITax), and the Book Entry Share so transferred or Certificate Certificate, if any, so surrendered shall forthwith be cancelled. No interest will be paid to or accrued for the benefit of holders of Book Certificates or Book-Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. Consideration payable in respect of Certificates or Book-Entry Shares.
(c) If any payment of the Merger Consideration is to be paid made to a Person other than the stockholder Person in whose name the Book surrendered Certificate or Book-Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that (i) the Person requesting such exchange payment present proper evidence of transfer and, if applicable, the surrendered Certificate shall pay be properly endorsed and otherwise in proper form for transfer or, in the case of Book-Entry Shares, the Person in whose name such Book-Entry Shares are registered shall have delivered to the Paying Agent instruments of transfer in such form as the Paying Agent may require in accordance with its customary procedures for the transfer for securities represented by book entry and (ii) the Person requesting such payment shall have paid any transfer or and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Certificate or Book-Entry Share transferred or Certificate surrendered, surrendered or shall establish have established to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax either has been paid or is not applicable.
(cd) The cash in the Consideration Fund Until surrendered as contemplated by this Section 2.3, each Certificate or Book-Entry Share shall be invested by the Paying Agent as directed by Parent; provided, however, that deemed at any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 2.1(a), without any interest thereon.
(e) All cash paid upon the amount surrender for exchange of such losses to Certificates or Book-Entry Shares in accordance with the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will terms of this Article II shall be deemed to be part have been paid in full satisfaction of all rights pertaining to the Consideration Fund.
(d) Shares formerly represented by such Certificates or Book-Entry Shares. At and after the Effective Time, there shall be no transfers on the share stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the shares Surviving Corporation of Company Common Stock the Shares that were outstanding immediately prior to the Effective Time. IfFrom and after the Effective Time, the holders of Certificates or Book-Entry Shares that evidenced ownership of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares other than the right to receive the applicable Merger Consideration, except as otherwise provided by applicable Law. Subject to the last sentence of Section 2.3(g), if, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for transfer (or for any other reason) or transfer is sought for Book-Entry Shares, they such Certificates or Book-Entry Shares shall be cancelled and exchanged for the Merger Consideration pursuant to as provided in this Article III, except as otherwise provided by LawII.
(ef) Any portion The Paying Agent shall invest any cash included in the Payment Fund as directed by Parent. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed payment obligations to be made in cash by the former Company stockholders Paying Agent hereunder (but subject to Section 2.6), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest and other income resulting from such investments shall be payable to, and shall be the property of, Parent.
(g) At any time following the date that is one (1) year after the Effective Time shallTime, Parent shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares, and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general unsecured creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificate or Book-Entry Shares. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit affidavit, in form and substance reasonably acceptable to Parent, of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate Certificate to be lost, stolen or destroyeddestroyed and, if required by the Paying Agent, Parent or the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent shall issue will pay, in exchange for such lost, stolen or destroyed Certificate Certificate, the Merger Consideration to which such Person is entitled be paid in respect of the Shares formerly represented by such Certificate pursuant to Certificate, as contemplated by this Article IIIII.
Appears in 2 contracts
Samples: Merger Agreement (Electro Scientific Industries Inc), Merger Agreement (MKS Instruments Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingFirst Merger Effective Time, Parent shall appoint a United States commercial bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonable acceptable to act, among other things, as paying agent the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger and to deliver the Merger Consideration to former stockholders payable in respect of the Companyshares of Company Common Stock. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations As of the Paying Agent consistent with the terms of this Agreement. At or prior to the First Merger Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Exchange Agent, for the account and benefit of the former holders of shares of Company Common Stock, an amount for exchange in accordance with this Section 2.05 through the Exchange Agent, (x) certificates (or evidence of shares in book-entry form) representing the shares of Parent Common Stock issuable pursuant to Section 2.04(a)(i) in exchange for outstanding shares of Company Common Stock and (y) cash sufficient to pay the Merger aggregate Cash Consideration payable pursuant to Section 2.04(a)(i). Parent agrees to make available, directly or indirectly, to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which such holders are entitled pursuant to Section 2.05(f) and cash in lieu of any fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.09. Promptly after the First Merger Effective Time (and in no event more than two (2) Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the First Merger Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the First Merger Effective Time and which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. All certificates (or evidence of shares in book-entry form) and cash deposited with the Exchange Agent pursuant to this Article III (such cash Section 2.05 shall be referred to in this Agreement as the “Exchange Fund.” Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article 2 out of the Exchange Fund”). In the event the Consideration The Exchange Fund shall not be insufficient used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; and provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests; provided, further, that to the extent necessary to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)Consideration, Parent shall promptly deliver, or cause to be delivered, provided additional funds to the Paying Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in an the amount that is equal to of any such losses. Any interest and other income resulting from such investments shall be the deficiency required to make such paymentsproperty of, and paid to, Parent upon termination of the Exchange Fund.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose Each holder of shares were of Company Common Stock that have been converted into the right to receive the Merger Consideration pursuant shall be entitled to Section 3.1: receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to in respect of the provisions Company Common Stock represented by such Certificate or Uncertificated Share (and cash in lieu of this Article IIIany fractional shares of Parent Common Stock and any dividends and distributions with respect thereto as contemplated by Section 2.09 and Section 2.05(f)). The shares of Parent Common Stock constituting part of such Merger Consideration, and the Book Entry Share so transferred at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Company Common Stock or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders is otherwise required under Applicable Law.
(c) If any portion of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If Consideration (and cash in lieu of any Merger Consideration fractional shares of Parent Common Stock and any dividends and distributions with respect thereto as contemplated by Section 2.09 and Section 2.05(f)) is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other similar Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax transfer or similar Taxes has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after Upon the First Merger Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to thereafter on the Effective Timerecords of the Company. If, after the First Merger Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Initial Surviving Corporation, the Surviving Corporation Company or the Paying Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions) with respect thereto in accordance with the procedures set forth in, or as otherwise contemplated by, this Article III, except as otherwise provided by Law2.
(e) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders one Common Stock twelve (112) year after months following the Effective Time shall, to the extent permitted by applicable Law, Closing Date shall be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares as otherwise instructed by Parent, and any such holder who has not theretofore complied exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Article III with respect Section 2.05 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration and any dividends and distributions (and cash in lieu of any fractional shares of Parent Common Stock) with respect thereof.
(f) thereto, without any interest thereon. Notwithstanding the foregoing, neither Parent and its Subsidiaries (including the Paying Agent nor any party hereto Initial Surviving Corporation and its Subsidiaries and the Surviving Company and its Subsidiaries) shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Common Stock for any amounts properly paid to a public official pursuant to any in compliance with applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If Following the surrender of any Certificate Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.05, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Share Consideration have been lostregistered, stolen or destroyed(i) in connection with the payment of the Share Consideration, upon (x) the making amount of an affidavit any cash payable in lieu of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration fractional shares to which such Person is entitled in pursuant to Section 2.09, and (y) the aggregate amount of all dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date on or after the First Merger Effective Time that were paid prior to the time of such Certificate surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Share Consideration with a record date on or after the First Merger Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to shares of Parent Common Stock constituting the Share Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.09, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Article IIISection 2.05.
(g) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Common Stock in connection with the Mergers, and the filing of any related Tax Returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.
Appears in 2 contracts
Samples: Merger Agreement (Humana Inc), Merger Agreement (Aetna Inc /Pa/)
Surrender and Payment. (a) Prior to the Acceptance Time, Parent shall appoint (pursuant to an agreement in a form reasonably acceptable to the Company) the Company’s transfer agent or another agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of (i) making payments to the holders of Shares entitled to receive the Offer Price pursuant to Section 2.01 and (ii) exchanging for the Merger Consideration (A) certificates representing Shares (the “Certificates”) or (B) uncertificated Shares represented by book entry (the “Uncertificated Shares”). At or prior to the ClosingAcceptance Time, Parent or one of its Affiliates shall appoint a United States bank or trust company or other independent financial institution in deposit with the United States Exchange Agent, for the benefit of the holders of Shares validly tendered (the “ Paying Agent”and not validly withdrawn) that is reasonably acceptable pursuant to the Company Offer, cash in an amount sufficient to act, among other things, as paying agent for pay the Merger and aggregate Offer Price required to deliver the Merger Consideration be paid pursuant to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this AgreementSection 2.01(f). At or prior to the Effective Time, Parent or one of its Affiliates shall deposit (or cause to be deposited) with the Paying Exchange Agent, for the account and benefit of the former holders of Company Common StockShares issued and outstanding immediately prior to the Effective Time, cash in an amount of cash sufficient to pay the aggregate Merger Consideration payable to be paid in respect of the Certificates and the Uncertificated Shares (such cash, together with the amount deposited pursuant to this Article III (such cash shall be referred to in this Agreement as the immediately preceding sentence, the “Consideration Payment Fund”). In The Payment Fund shall not be used for any other purpose and, in the event that the Consideration Payment Fund shall at any time be insufficient to pay make the payments of the Offer Price or the Merger Consideration (including with respect to Company Common Stock held contemplated by stockholders who did not vote in favor of the Merger but who did not exercisethis Agreement, Parent shall, or who shall have effectively withdrawn or lostcause one of its Affiliates to, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, deposit additional funds to with the Paying Exchange Agent in an amount that is equal to the deficiency required sufficient to make such payments.
(b) . Promptly after the Effective Time (Time, and in any event within five (5) not later than three Business Days after following the Effective Time)Date, Parent shall cause the Paying Exchange Agent to mail send to each stockholder whose shares were converted into holder of Shares as of the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Exchange Agent) for use in such exchange.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent and of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to payable for each Share represented by a Certificate or for each Uncertificated Share. From and after the provisions of this Article IIIEffective Time, and the Book Entry Share so transferred or Certificate until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall forthwith be cancelled. No interest will be paid represent for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, receive the Merger Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At From and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation Table of Contents Corporation, Parent or the Paying Agent for any reasonExchange Agent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law3.
(e) Any portion of the Merger Consideration Fund deposited with the Exchange Agent pursuant to Section 3.07(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former Company stockholders one (1) year any holder of Shares 12 months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered returned to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who one of its Affiliates, upon demand, and any such holder that has not theretofore complied exchanged its Shares for the Merger Consideration in accordance with this Article III with respect Section 3.07 prior to such Certificates or Book Entry Shares time shall thereafter look only to Parent for payment of their claim for the Merger Consideration in respect thereof.
(f) of such Shares, without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent Parent nor any party hereto of its Affiliates shall be liable to any Person in respect holder of cash from the Consideration Fund delivered Shares for any amounts paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of Shares as of immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent Parent, free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If any Certificate shall have been lost, stolen or destroyed, upon the making Any portion of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate deposited with the Exchange Agent pursuant to this Article IIISection 3.07(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent or one of its Affiliates upon demand.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sonic Financial Corp), Merger Agreement (Speedway Motorsports Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent Purchaser shall appoint as agent (the "EXCHANGE AGENT") a United States commercial bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is company, reasonably acceptable to the Company and having at least $50,000,000 in capital, surplus and undivided profits, for the purpose of exchanging certificates which immediately prior to act, among other things, as paying agent the Effective Time represented Shares ("CERTIFICATES") for the Merger and Consideration which holders of Certificates are entitled to deliver the Merger Consideration receive pursuant to former stockholders of the Companythis Article III. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or Immediately prior to the Effective Time, Parent Purchaser shall deposit (or cause to be deposited) in trust with the Paying Agent, for Exchange Agent cash in an aggregate amount equal to the account product of (i) the number of Shares outstanding immediately prior to the Effective Time (other than the Shares owned by Purchaser or the Company and benefit any direct or indirect Subsidiary of the former holders of Company Common StockCompany, an amount of cash sufficient and Shares as to pay the Merger Consideration payable pursuant to this Article III which appraisal rights have been demanded) and (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay ii) the Merger Consideration (including such amount being hereinafter referred to as the "PAYMENT FUND"). The Payment Fund shall be invested by the Exchange Agent as directed by Purchaser (so long as such directions do not impair the rights of the holders of Shares) 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 principal and interest, and any net earnings with respect thereto shall be paid to Company Common Stock held Purchaser as and when requested by stockholders who did not vote Purchaser. The Exchange Agent shall, pursuant to irrevocable instructions, make the payments referred to in favor Section 3.2(b) out of the Merger but who did Payment Fund. The Payment Fund shall not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) used for any other purpose except as provided herein. Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall Purchaser will send, or will cause the Paying Exchange Agent to mail send, to each stockholder whose shares were converted into the right to receive Merger Consideration holder of record of a Certificate or Certificates, other than holders of Certificates which represent Shares canceled and retired pursuant to Section 3.1: 3.1(b) hereof, (i) a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title with respect to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Exchange Agent) and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment therefore (the "EXCHANGE INSTRUCTIONS").
(b) Each holder of Certificates that represent Shares that have been converted into a right to receive the Merger Consideration, upon surrender to the form Exchange Agent of a Certificate or Certificates, together with a properly completed and substance of which executed letter of transmittal covering such Certificates and instructions shall be as any other documents reasonably agreed to required by the Company and Parent and prepared prior to Exchange Instructions, will promptly receive the Closing. Upon receipt of an “agent’s message” by the Paying Agent Merger Consideration payable in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder respect of such Book Entry Share or Certificate shall be entitled to receive Certificates as provided in exchange thereforthis Article III, subject to without any interest thereon, less any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIItaxes, and the Book Entry Share so transferred or Certificate Certificates so surrendered shall forthwith be cancelledcanceled. No interest will be paid After the Effective Time, and until so surrendered, each such Certificate shall represent for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any receive such Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred except as otherwise provided herein or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicableapplicable law.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate Certificate to be lost, stolen or destroyeddestroyed and, if required by the Surviving Corporation, the Paying posting by such Person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to the loss, theft or destruction of such Certificate, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate certificate the Merger Consideration.
(d) If any portion of the Merger Consideration is to which be paid to a Person other than the registered holder of the Shares represented by the Certificate or Certificates surrendered in exchange therefore, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person is entitled in respect requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such Certificate pursuant payment to a Person other than the registered holder of such Shares or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. The Exchange Agent may make any tax withholdings required by law if not provided with the appropriate documents. For purposes of this Article IIIAgreement, "PERSON" means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
Appears in 2 contracts
Samples: Merger Agreement (Seracare Inc), Merger Agreement (Grupo Grifols Sa)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of paying the Merger Consideration as provided in Section 1.2(a) and Section 1.6. Contemporaneously with the Effective Time, Parent shall deposit with and make available to (or shall cause to be depositeddeposited with and made available to) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of Exchange Agent cash sufficient to pay the Merger full Closing Cash Consideration payable pursuant to this Article III in respect of shares of Company Common Stock and Company Warrants, but not any Closing Cash Consideration in respect of any Excluded Shares, Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, the Company RSU Cash Consideration or the Company PSU Cash Consideration (such cash shall be referred to in this Agreement as the “Consideration Exchange Fund”). In If, for any reason (including losses) the event the Consideration Exchange Fund shall be insufficient is inadequate to pay the Merger Closing Cash Consideration (including with in respect to of the shares of Company Common Stock held by stockholders who did not vote and Company Warrants (excluding any Closing Cash Consideration in favor respect of any Excluded Shares, Dissenting Shares as of the Merger but who did not exerciseEffective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, the Company RSU Cash Consideration or who shall have effectively withdrawn or lost, their rights to appraisal of such the Company Common Stock under the DGCLPSU Cash Consideration), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly deliverto deposit with and make available to the Exchange Agent additional cash sufficient to pay all such amounts, and Parent and the Surviving Corporation shall in any event be liable for the timely payment thereof. All cash deposited with the Exchange Agent shall only be used for the purposes provided in this Agreement, or cause to as otherwise agreed by the Company and Parent before the Effective Time. Any income from investment of the Exchange Fund will be delivered, additional funds payable to the Paying Agent in an amount that is equal to Parent or the deficiency required to make such payments.
(b) Surviving Corporation, as the Parent directs. Promptly after the Effective Time (and but in any no event within later than five (5) Business Days after the Effective Time), Parent shall cause the Paying Exchange Agent to mail send to each stockholder whose holder of shares were converted into of Company Common Stock at the right to receive Effective Time (other than the Company, Parent, Merger Consideration pursuant to Section 3.1: (iSubsidiary or any Subsidiary of the Company or Parent) a letter of transmittal, in customary formform and substance reasonably acceptable to the Company, that and instructions for use in such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares shares of Company Common Stock to the Paying Exchange Agent). Notwithstanding anything to the contrary contained herein, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the CVR Agreement.
(iib) instructions for use in effecting Each holder of shares of Company Common Stock that have been converted into the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of right to receive the Merger Consideration, the form and substance of which letter of transmittal and instructions Consideration shall be as reasonably agreed entitled to by the Company and Parent and prepared prior to the Closing. Upon receive, upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share (or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents evidence, if any, of transfer as the Exchange Agent may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxesreasonably request), the Merger Consideration in respect of such holder’s shares of Company Common Stock; provided that no portion of the Merger Consideration relating to the CVRs will be paid unless and until it is required to be paid pursuant to the provisions CVR Agreement. Until the Merger Consideration in respect of this Article IIIa given share of Company Common Stock has been paid, and such share of Company Common Stock shall represent after the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelledEffective Time for all purposes only the right to receive such Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. shares of Company Common Stock.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share a transferred or Certificate surrendered in exchange therefor share of Company Common Stock is registered, it shall be a condition to such payment that (i) such share of such exchange that Company Common Stock shall be properly transferred and (ii) the Person requesting such exchange payment shall pay in advance to the Paying Exchange Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such share of Company Common Stock or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicablepayable.
(cd) Upon the Effective Time, the transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of shares of Company Common Stock. If, after the Effective Time, shares of Company Common Stock are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article I.
(e) Any portion of the Closing Cash Consideration made available to the Exchange Agent pursuant to Section 1.3(a) that remains unclaimed by the holders of shares of Company Common Stock nine (9) months after the Effective Time and any portion of any amounts payable in respect of the CVRs and made available to the Rights Agent that remains unclaimed by the holders of shares of Company Common Stock nine (9) months after deposit with the Rights Agent, in each case shall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 1.3 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration, in respect of such shares without any interest thereon. Notwithstanding the foregoing, none of Parent, the Surviving Corporation or the Exchange Agent shall be liable to any holder of shares of Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) The agreement with the Exchange Agent shall provide that the Exchange Agent shall invest any cash included in the Consideration Exchange Fund shall be invested by the Paying Agent as directed by ParentParent or, after the Effective Time, the Surviving Corporation; providedprovided that (i) no such investment (including any losses thereon) shall relieve Parent or the Exchange Agent from making the payments required by this Article I, however, (ii) no such investment shall have maturities that any could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days America or guaranteed by the United States and backed of America, in commercial paper obligations rated P-1 or A-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Financial Services LLC, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $50 billion, or in money market funds having a rating in the full faith and highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the United Statesforegoing. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation Any interest or the Paying Agent from promptly making the payments required income produced by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds investments will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented payable to the Surviving Corporation or Parent, as directed by Xxxxxx. To the Paying extent (A) there are any losses with respect to any investments of the Exchange Fund; (B) the Exchange Fund diminishes for any reason below the level required for the Exchange Agent to promptly pay the cash amounts contemplated by Section 1.2 and Section 1.6; or (C) all or any portion of the Exchange Fund is unavailable for Parent (or the Exchange Agent on behalf of Parent) to promptly pay the cash amounts contemplated by Section 1.2 and Section 1.6 for any reason, they Parent shall, or shall be cancelled cause the Surviving Corporation to, promptly replace or restore the amount of cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times fully available for distribution and exchanged maintained at a level sufficient for the Merger Consideration pursuant Exchange Agent to this Article III, except as otherwise provided make the payments contemplated by LawSection 1.2 and Section 1.6.
(eg) Any portion of the Closing Cash Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, made available to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Exchange Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered any Dissenting Shares shall be returned to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyedParent, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIdemand.
Appears in 2 contracts
Samples: Merger Agreement (Ani Pharmaceuticals Inc), Merger Agreement (Alimera Sciences Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint an agent (the "Exchange Agent") reasonably acceptable to the Company for the purpose of exchanging certificates representing Shares (the "Certificates") for the Merger Consideration. At the Effective Time, Parent will deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay Exchange Agent the Merger Consideration payable pursuant to this Article III (such cash shall be referred to paid in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Shares. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Parent will send, or will cause the Exchange Agent to send, to each holder of Shares at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) Time a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of Shares that have been converted into the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of right to receive the Merger ConsiderationConsideration will be entitled to receive, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant payable for each Share represented by such Certificate. Until so surrendered, each such Certificate shall represent after the Effective Time for all purposes only the right to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share transferred or surrendered Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund made available to the Exchange Agent pursuant to Section 2.03(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former Company stockholders holders of Shares one (1) year after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged Shares for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration in respect thereof.
(f) of such Shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate Any amounts remaining unclaimed by holders of Shares three years after the Effective Time (or Book Entry Share shall not have been surrendered or transferred, respectively, such earlier date immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallgovernmental authority) shall become, to the extent permitted by applicable Lawlaw, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If any Certificate shall have been lost, stolen or destroyed, upon the making Any portion of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration made available to which such Person is entitled in respect of such Certificate the Exchange Agent pursuant to this Article IIISection 2.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Philip Morris Companies Inc), Merger Agreement (Nabisco Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent the Acquiror shall appoint a United States bank or trust company or other independent financial institution in the United States Continental Stock Transfer & Trust Company (the “ “Paying Agent”) that is reasonably acceptable to act as the Company to act, among other things, as paying agent for the Merger and to deliver purpose of exchanging the Merger Consideration for: (i) the Certificates, or (ii) book-entry shares which immediately prior to former stockholders the Effective Time represented the shares of Company Common Stock (the Company“Book-Entry Shares”). The Company and Parent At or promptly following the Effective Time, the Acquiror shall enter into a Paying Agent agreement deposit, or cause the Surviving Corporation to deposit, with the Paying Agent, sufficient funds to pay the aggregate Merger Consideration that is payable in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (the “Payment Fund”). If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which agreement holders of shares shall set forth be entitled under Section 6(b), the dutiesAcquiror shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Paying Agent sufficient to make all payments required under this Agreement, responsibilities and obligations the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent consistent Agent, in connection with the terms exchange of this Agreementshares for the Merger Consideration. At or prior to Promptly after the Effective Time, Parent the Acquiror shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercisesend, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail send, to each stockholder whose record holder of shares were converted into of Company Common Stock at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time, a letter of transmittal, in customary form, that transmittal (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent and (iiAgent) instructions for use in effecting such exchange.
(b) Each holder of shares of Company Common Stock that have been converted into the surrender right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Certificates Company Common Stock represented by a Certificate or transfer Book-Entry Share upon (i) surrender to the Paying Agent of the Book Entry Shares in exchange for payment of the Merger Considerationa Certificate, the form together with a duly completed and substance of which validly executed letter of transmittal and instructions shall such other documents as may reasonably be as reasonably agreed to requested by the Company and Parent and prepared prior to the Closing. Upon Paying Agent, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of Book-Entry Shares. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 8, each such Certificate or Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of a Book any Certificate or Book-Entry Share or surrender Share. Upon payment of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIIAgreement, and the Book Entry Share so transferred each Certificate or Certificate Certificates so surrendered shall forthwith immediately be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person person other than the stockholder person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes tax required by reason as a result of such payment of the Merger Consideration to a Person person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to on the Effective Timestock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by LawAgreement.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders one Common Stock six (16) year months after the Effective Time shallshall be returned to the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration. Notwithstanding the foregoing, the Surviving Corporation shall not be liable to any holder of shares of Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws (as hereinafter defined). Any amounts remaining unclaimed by holders of shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any governmental entity) shall become, to the extent permitted by applicable Law, be delivered to Parent or the property of the Surviving Corporation for no consideration. Any Company stockholder owning Certificates free and clear of any claims or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment interest of their claim for Merger Consideration in respect thereofany person previously entitled thereto.
(f) Notwithstanding Any portion of the foregoing, neither Merger Consideration made available to the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered any Dissenting Shares shall be returned to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofupon demand.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Sonomawest Holdings Inc), Merger Agreement (Stapleton Acquisition Co)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an agent reasonably acceptable to the Company (or cause to be depositedthe “Exchange Agent”) with the Paying Agent, for the account and benefit purpose of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay exchanging for the Merger Consideration (including i) certificates representing shares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). On the Business Day prior to the Closing, the Company shall deposit the Company Cash Deposit with respect to Company Common Stock held by stockholders who did the Exchange Agent (provided, that, if the Closing does not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of occur on such Company Common Stock under the DGCL)next Business Day, Parent shall promptly deliverwill return, or cause to be deliveredreturned, additional funds such Company Cash Deposit to the Paying Agent Company on the second Business Day after such deposit). The Company Cash Deposit shall be made solely out of cash on hand and shall be used solely for purposes of paying a portion of the Merger Consideration in an amount that is equal accordance with this Article 2 and shall not be used to satisfy any other obligation of the deficiency required to make such payments.
(b) Company or any of its Subsidiaries. Promptly after the Effective Time (Time, Parent shall make available to the Exchange Agent cash in an amount sufficient to pay all remaining aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares in any event within five (5) Business Days excess of the Company Cash Deposit. As promptly as reasonably practicable after the Effective Time), Parent shall send, or shall cause the Paying Exchange Agent to mail send, to each stockholder whose holder of shares were converted into of Company Stock at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Exchange Agent) for use in such exchange.
(b) Except as set forth in Sections 2.02(b) and (c), each holder of shares of Company Stock shall be entitled to receive, upon (i) surrender to the Exchange Agent and of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to in respect of the provisions of this Article III, and the Book Entry Share so transferred Company Stock represented by a Certificate or Certificate Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall forthwith be cancelled. No interest will be paid represent after the Effective Time for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeStock. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonExchange Agent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund (including made available to the proceeds of any investments thereofExchange Agent pursuant to Section 2.03(a) that remains unclaimed by the former holders of shares of Company stockholders one (1) year Stock 180 days after the Effective Time shall, shall be returned to the extent permitted by applicable LawSurviving Corporation, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares upon demand, and any such holder who has not theretofore complied exchanged shares of Company Stock for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent the Surviving Corporation for payment of their claim for the Merger Consideration in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither Parent nor the Paying Agent nor any party hereto Surviving Corporation shall be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Stock for any amounts paid to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereoflaws.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (STG Ugp, LLC), Merger Agreement (MSC Software Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint a bank, trust company or nationally recognized stockholder services provider or such other Person reasonably acceptable to the Company as paying agent (the “Paying Agent”) for the holders of Shares to receive the aggregate Merger Consideration to which the holders of such Shares shall become entitled pursuant to, and in accordance with, Section 2.5. Promptly after the Effective Time (but in no event later than three Business Days following the Effective Time), Parent shall deposit, or shall cause to be deposited) , with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, Agent cash in an aggregate amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant to this Article III Section 2.5 (such cash shall be referred to in this Agreement as the “Consideration Payment Fund”). In the event the Consideration The Payment Fund shall not be insufficient used for any purpose other than to pay the aggregate Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsMerger.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall will send, or will cause the Paying Agent to mail send, to each stockholder holder of record of Shares as of the Effective Time, in each case whose shares Shares were converted into the right to receive the Merger Consideration pursuant to Section 3.1: (i) Consideration, a letter of transmittal, in customary form, that transmittal (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits to the Paying Agent) in such form as the Company and Parent may reasonably agree, for use in effecting delivery of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender Agent. Surrender of the Certificates or transfer of the Book any Book-Entry Shares shall be effected in exchange for payment accordance with the Paying Agent’s customary procedures with respect to securities represented by book entry.
(c) Each holder of Shares that have been converted into a right to receive the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed upon surrender to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agentor Book-Entry Share (or affidavits in lieu thereof in accordance with Section 3.2), in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefor, subject to any required withholding of Taxes, therefor the Merger Consideration pursuant to the provisions of this Article IIIfor each Share formerly evidenced by such Certificates or Book-Entry Shares, and the Book such Certificates and Book-Entry Share so transferred or Certificate so surrendered Shares shall forthwith then be cancelledcanceled. No interest will shall be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the on any Merger Consideration. Until so surrendered, each such Certificate or Book-Entry Share shall, after the Effective Time, represent for all purposes only the right to receive such Merger Consideration as contemplated by Section 2.5.
(d) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share transferred or applicable surrendered Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange to the payment thereof that (i) the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and (ii) the Person requesting such exchange delivery of the Merger Consideration shall either (A) pay to the Paying Agent any stock transfer or other similar Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall (B) establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not payable. None of Parent, Merger Sub and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.1(d) under any circumstance. Payment of the aggregate Merger Consideration, as applicable, with respect to Book-Entry Shares shall be made only to the Person in whose name such Book-Entry Shares are registered.
(ce) The cash All Merger Consideration paid upon the surrender of and in exchange for Shares in accordance with the Consideration Fund terms hereof shall be invested by deemed to have been paid in full satisfaction of all rights pertaining to such Shares. From and after the Effective Time, there shall be no further registration of transfers of Shares made on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Paying Agent, the Surviving Corporation or Parent, they shall be canceled and exchanged for the consideration provided for by, and in accordance with the procedures set forth in, Article II and this Article III.
(f) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.1(a) that remains unclaimed by the holders of Shares one year after the Effective Time shall be returned to Parent, or transferred as otherwise directed by Parent, upon demand, and any such holder who has not exchanged such holder’s Shares for the Merger Consideration in accordance with this Section 3.1 prior to that time shall thereafter look only to Parent for delivery of the Merger Consideration. Notwithstanding the foregoing, none of Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall be liable to any holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of Shares two years after the Effective Time, or such earlier time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(g) The Paying Agent shall invest any cash deposited by or on behalf of Parent pursuant to Section 3.1(a) as directed by Parent; provided, however, that (i) in no event shall any losses on such investments affect the cash payable to former holders of Shares pursuant to this Article III, and (ii) such investments shall be in short-term (1) obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed of America, (2) commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, (3) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (4) money market funds having a rating in the full faith and highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the United Statesforegoing and, in any such case, no such investment instrument shall have a maturity exceeding three months. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole Any interest and exclusive property of Parent and other income resulting from such investments shall be paid as Parent directspromptly to Parent. No investment To the extent there are any losses with respect to any investments of the Consideration Fund funds deposited with the Paying Agent, or the funds shall relieve Parentfor any other reason, including the Surviving Corporation or Dissenting Shares losing their status as such, not be sufficient for the Paying Agent from promptly making to make prompt payment of the payments required Merger Consideration, then upon demand by this Article III, and following any losses from any such investmentthe Paying Agent, Parent shall promptly reimburse any such loss or otherwise provide additional cash funds (by wire transfer of immediately available funds) so as to ensure that the funds are at all times maintained at a level sufficient for the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed make all payments contemplated by this Agreement to be part of made by the Consideration FundPaying Agent.
(dh) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds The payment of any investments thereof) that remains unclaimed transfer, documentary, sales, use, stamp, registration, value added and other similar Taxes and fees incurred by a holder of Shares in connection with the former Company stockholders one (1) year after Merger, as well as the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III filing of any related Tax Returns and other documentation with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoingTaxes and fees, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect responsibility solely of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofholder.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (American National Group Inc), Merger Agreement (Brookfield Asset Management Reinsurance Partners Ltd.)
Surrender and Payment. (a) At or prior to the ClosingPACIFIC shall, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after at the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a DISTRIBUTORS Certificate for cancellation (hereinafter defined), deliver to the Paying Agent, in each case together with such letter holder of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructionsrecord of one or more certificates representing DISTRIBUTORS Common Stock (collectively, the holder "DISTRIBUTORS Certificates") that has been converted into PACIFIC Common Stock as set forth in Section 1(f), a certificate or certificates representing the number of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, PACIFIC Common Stock into which the Merger Consideration pursuant to shares represented by the provisions of this Article III, and the Book Entry Share so transferred or DISTRIBUTORS Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates have been converted as provided in connection with, or accrued on, the Merger ConsiderationSection 1(f). If any Merger Consideration PACIFIC Common Stock is to be paid to issued in a Person name other than the stockholder that in whose name the Book Entry Share transferred or which a DISTRIBUTORS Certificate so surrendered in exchange therefor is then registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required DISTRIBUTORS Certificate surrendered be accompanied by reason of payment of the Merger Consideration to any applicable transfer taxes and documents required for a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to valid transfer in the reasonable satisfaction judgment of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States PACIFIC and backed by the full faith and credit of the United Statesits counsel. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At From and after the Effective Time, there until so surrendered, each DISTRIBUTORS Certificate shall be deemed for all corporate purposes, except as set forth below, to evidence the number of PACIFIC Common Stock into which the DISTRIBUTORS Common Stock represented by such DISTRIBUTORS Certificate shall have been converted. Unless and until any DISTRIBUTORS Certificate shall be so surrendered, the holder of such DISTRIBUTORS Certificate shall have no transfers on right to vote or to receive any dividends or other distributions made to holders of record of PACIFIC Common Stock after the share transfer books Effective Time. Upon surrender of a DISTRIBUTORS Certificate, the Company holder of record thereof shall receive, together with certificates representing PACIFIC Common Stock to which he shall be entitled in accordance with Section 1(f), all dividends and other distributions which shall have theretofore been paid or made to holders of record of PACIFIC Common Stock after the Effective Time with respect to such shares. PACIFIC shall be authorized to deliver certificates for PACIFIC Common Stock attributable to any DISTRIBUTORS Certificate theretofore issued which has been lost or destroyed upon receipt of satisfactory evidence of ownership of the shares of Company DISTRIBUTORS Common Stock that were outstanding immediately prior to formerly represented thereby and of appropriate indemnification of PACIFIC. Exhibit B annexed hereto sets forth each holder of record of DISTRIBUTORS Common Stock, the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided number of shares of DISTRIBUTORS Common Stock owned by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporationholder, and any stockholder the DISTRIBUTORS Certificate(s) representing the shares of DISTRIBUTORS Common Stock owned by such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofholder.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 2 contracts
Samples: Merger Agreement (Pacific Development Corp), Merger Agreement (Pacific Development Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration payable in respect of the shares of Company Common Stock. As of the Effective Time, in consideration of and in exchange for the Cancellation, Parent shall deposit (with the ADS Depositary Parent Ordinary Shares underlying the Parent ADSs issuable pursuant to Section 2.03(a). As of the Effective Time, Parent shall deposit or cause to be deposited) deposited with the Paying Exchange Agent, for the account and benefit of the former holders of shares of Company Common Stock, an amount for exchange in accordance with this Section 2.04 through the Exchange Agent, the Parent ADSs issuable pursuant to Section 2.03(a) in exchange for outstanding shares of Company Common Stock. For the avoidance of doubt, any stamp duty liability arising in connection with the deposit of Parent ADSs with the Exchange Agent will be payable by Parent. Parent agrees to make available, directly or indirectly, to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which such holders are entitled pursuant to Section 2.04(f). Promptly after the Merger Consideration payable Effective Time (and in no event later than five Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the Effective Time and which shall specify that delivery shall be effected, and risk of loss and title shall pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. All certificates (or evidence of Parent ADSs in book-entry form) and cash deposited with the Exchange Agent pursuant to this Article III (such cash Section 2.04 shall be referred to in this Agreement as the “Consideration Exchange Fund”). In Parent shall cause the event the Consideration Fund shall be insufficient Exchange Agent to pay deliver the Merger Consideration (including with respect contemplated to Company Common Stock held by stockholders who did not vote in favor be issued or paid pursuant to this Article II out of the Merger but who did Exchange Fund. The Exchange Fund shall not exercisebe used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided, or who that such cash shall have effectively withdrawn or lostonly be invested in the manner provided in the Exchange Agent Agreement. Any interest and other income resulting from such investments shall be the property of, their rights to appraisal of such Company Common Stock under the DGCL)and paid to, Parent shall promptly deliver, or cause to be delivered, additional funds to on termination of the Paying Agent in an amount that is equal to the deficiency required to make such paymentsExchange Fund.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose Each holder of shares were of Company Common Stock that have been converted into the right to receive the Merger Consideration pursuant shall be entitled to Section 3.1: receive, within five Business Days of the later to occur of (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and duly executed letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant in respect of each share of the Company Common Stock represented by such Certificate or Uncertificated Share (including any dividends and distributions with respect to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelledMerger Consideration as contemplated by Section 2.04(f)). No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, The Parent ADSs constituting the Merger Consideration. , at Parent’s option, shall be in uncertificated book-entry form, unless a physical American depositary receipt evidencing such Parent ADSs is requested by a holder of shares of Company Common Stock or is otherwise required under Applicable Law.
(c) If any portion of the Merger Consideration (or any dividends and distributions with respect to the Merger Consideration as contemplated by Section 2.04(f)) is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any stamp duty, stamp duty reserve tax, transfer or other similar Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has stamp duty, stamp duty reserve tax, transfer or similar Taxes have been paid or is are not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At From and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to thereafter on the Effective Timerecords of the Company. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Surviving Corporation or the Paying Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant (and any dividends and distributions with respect to the Merger Consideration as contemplated by Section 2.04(f)) with respect thereto in accordance with the procedures set forth in, or as otherwise contemplated by, this Article III, except as otherwise provided by LawII (including this Section 2.04).
(e) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders one (1) year after Common Stock 12 months following the Effective Time shall, to the extent permitted by applicable Law, Closing Date shall be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares as otherwise instructed by Parent, and any such holder who has not theretofore complied exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Article III with respect Section 2.04 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration in (and any dividends and distributions with respect thereof.
(f) to the Merger Consideration as contemplated by Section 2.04(f)), without any interest thereon. Notwithstanding the foregoing, neither Parent and its Subsidiaries (including the Paying Agent nor any party hereto Surviving Corporation and its Subsidiaries) shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Common Stock for any amounts properly paid to a public official pursuant to any in compliance with applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If Following the surrender of any Certificate Certificates, along with the delivery of a properly completed and duly executed letter of transmittal, or the transfer of any Uncertificated Shares, in each case as provided in this Section 2.04, Parent shall have been lostpay, stolen or destroyedcause to be paid, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory without interest, to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, in whose name the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate Parent ADSs constituting the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration, the aggregate amount of all dividends or other distributions payable with respect to which such Person is entitled in respect Parent ADSs, with a record date on or after the Effective Time that were paid prior to the time of such Certificate pursuant surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole Parent ADSs constituting the Merger Consideration with a record date on or after the Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to Parent ADSs constituting the Merger Consideration shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates are surrendered and the holder thereof delivers a properly completed and duly executed letter of transmittal or such or Uncertificated Shares are transferred, as the case may be, as provided in this Article IIISection 2.04.
Appears in 2 contracts
Samples: Merger Agreement (Chiasma, Inc), Merger Agreement (Amryt Pharma PLC)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank or and trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent (the “Paying Agent”) for the purpose of exchanging for the Merger and to deliver Consideration (i) certificates representing Shares (the Merger Consideration to former stockholders of “Certificates”) or (ii) uncertificated Shares (the Company“Uncertificated Shares”). The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this AgreementAgreement and otherwise reasonably acceptable to the Company and Parent prior to the Effective Time. At or Immediately prior to the Effective Time, Parent shall deposit with the Paying Agent (or shall cause the Company to be deposited) deposit with the Paying Agent), for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant (the “Aggregate Merger Consideration”) to this Article III be paid in respect of the Certificates and the Uncertificated Shares (such cash shall be referred to in this Agreement as cash, the “Consideration Fund”). In addition, promptly after the Effective Time on the date of the Closing, Parent shall make available (or shall cause the Company to make available) as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Effective Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect on account of any Merger Consideration returned to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights Parent pursuant to appraisal of such Company Common Stock under the DGCLSection 2.03(g)), Parent shall promptly deliver, or cause to be delivereddelivered (including by causing the Company, following the Effective Time, to deliver), additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) . Promptly after the Effective Time (and in any event within five (5) three Business Days after the Effective Time), Parent the Company shall send, or shall cause the Paying Agent to mail send, to each stockholder whose shares were converted into holder of Shares at the right to receive Merger Consideration pursuant to Section 3.1: Effective Time (i) other than Parent or any of its applicable Affiliates), a letter of transmittal, transmittal and instructions in customary form, that form (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent and (iiAgent) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Considerationsuch exchange, with the form and substance of which such letter of transmittal and instructions shall to be as reasonably agreed to by Parent and the Company and Parent and prepared prior to the Closing. Upon Effective Time.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry payable for each such Share so transferred represented by such Certificate or Certificate for each such Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall forthwith be cancelled. No interest will be paid represent after the Effective Time for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, receive the Merger Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any such Shares.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent and Parent that such Tax has been paid or is not applicablepayable.
(cd) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days three months or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders Company Stockholders shall be the sole and exclusive property of Parent the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 2.03(a) and shall be paid as Parent it directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent any Person from promptly making the payments required by this Article III2, and following any losses from any such investment, Parent shall promptly provide (or shall cause the Company to promptly provide following the Effective Time) additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time applicable Company Stockholders in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(de) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(ef) Any portion of the Merger Consideration Fund made available to the Paying Agent pursuant to Section 2.03(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former Company stockholders holders of Shares that have been converted into the right to receive the Merger Consideration one (1) year after the Effective Time shallTime, to the extent permitted by applicable Applicable Law, shall be delivered returned to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 2.03(a), upon demand, and any such holder who has not theretofore complied exchanged such Shares for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment such party only as general creditors of their claim for such party with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Uncertificated Shares held by them, without interest and subject to any withholding of Taxes required by Applicable Law in respect thereof.
(f) accordance with this Section 2.03(f). Notwithstanding the foregoing, neither Parent, the Paying Agent Company nor any party hereto of their Affiliates shall be liable to any Person in respect holder of cash from the Consideration Fund delivered Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not Any amounts remaining unclaimed by holders of Shares that have been surrendered converted into the right to receive the Merger Consideration two years after the Effective Time (or transferred, respectively, such earlier date immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, Authority) shall become to the extent permitted by applicable Law, become Applicable Law the property of Parent or the Surviving CorporationCompany, as applicable, free and clear of any stockholder claims or interest of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory Merger Consideration made available to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIISection 2.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 2.03(a), upon demand.
Appears in 2 contracts
Samples: Merger Agreement (ProFrac Holding Corp.), Merger Agreement (FTS International, Inc.)
Surrender and Payment. (a) At or prior Prior to the ClosingMerger Effective Time, Parent shall appoint a United States commercial bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to act, among other things, as paying agent the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger and to deliver Consideration payable in respect of the shares of Company Common Stock. As of the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Exchange Agent, for the account and benefit of the former holders of shares of Company Common Stock, an amount for exchange in accordance with this Section 2.04 through the Exchange Agent, (x) certificates (or evidence of shares in book-entry form) representing the shares of Parent Common Stock issuable pursuant to Section 2.03(a) in exchange for outstanding shares of Company Common Stock, (y) cash sufficient to pay the Merger aggregate Cash Consideration payable pursuant to Section 2.03(a) and (z) New CVR Certificates representing the New CVRs issuable pursuant to Section 2.03(a) and the New CVR Agreement. Parent agrees to make available, directly or indirectly, to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which such holders are entitled pursuant to Section 2.04(f) and cash in lieu of any fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.08. Promptly after the Merger Effective Time (and in no event more than two (2) Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the Merger Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the Merger Effective Time and which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. All certificates (or evidence of shares in book-entry form) representing shares of Parent Common Stock and New CVR Certificates and cash deposited with the Exchange Agent pursuant to this Article III (such cash Section 2.04 shall be referred to in this Agreement as the “Consideration Exchange Fund”). In Parent shall cause the event Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be insufficient used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; and provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests; provided, further, that to the extent necessary to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)Consideration, Parent shall promptly deliver, or cause to be delivered, provided additional funds to the Paying Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in an the amount that is equal to of any such losses. Any interest and other income resulting from such investments shall be the deficiency required to make such paymentsproperty of, and paid to, Parent upon termination of the Exchange Fund.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose Each holder of shares were of Company Common Stock that have been converted into the right to receive the Merger Consideration pursuant shall be entitled to Section 3.1: receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and duly executed letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant in respect of each share of the Company Common Stock represented by such Certificate or Uncertificated Share (including cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the provisions Share Consideration as contemplated by Section 2.08 and Section 2.04(f)). The shares of this Article IIIParent Common Stock constituting the Share Consideration, and the Book Entry Share so transferred at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Company Common Stock or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders is otherwise required under Applicable Law.
(c) If any portion of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If Consideration (or cash in lieu of any Merger fractional shares of Parent Common Stock or any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.08 or Section 2.04(f)) is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other similar Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has transfer or similar Taxes have been paid or is are not applicablepayable.
(cd) The cash in Upon the Consideration Fund Merger Effective Time, there shall be invested by no further registration of transfers of shares of Company Common Stock thereafter on the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations records of the United States with maturities of no more than thirty (30) days Company. If, after the Merger Effective Time, Certificates or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable Uncertificated Shares are presented to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.08 and Section 2.04(f)) with respect thereto in accordance with the procedures set forth in, or as otherwise contemplated by, this Article III, except as otherwise provided by LawII (including this Section 2.04).
(e) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders one Common Stock twelve (112) year after months following the Effective Time shall, to the extent permitted by applicable Law, Closing Date shall be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares as otherwise instructed by Parent, and any such holder who has not theretofore complied exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Article III with respect Section 2.04 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect thereof.
(f) to the Share Consideration as contemplated by Section 2.08 and Section 2.04(f)), without any interest thereon. Notwithstanding the foregoing, neither Parent and its Subsidiaries (including the Paying Agent nor any party hereto Surviving Corporation and its Subsidiaries) shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Common Stock for any amounts properly paid to a public official pursuant to any in compliance with applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If Following the surrender of any Certificate Certificates, along with the delivery of a properly completed and duly executed letter of transmittal, or the transfer of any Uncertificated Shares, in each case as provided in this Section 2.04, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Share Consideration have been lostregistered, stolen or destroyed(i) in connection with the payment of the Share Consideration, upon (x) the making amount of an affidavit any cash payable in lieu of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration fractional shares to which such Person is entitled in pursuant to Section 2.08, and (y) the aggregate amount of all dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date on or after the Merger Effective Time that were paid prior to the time of such Certificate surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Share Consideration with a record date on or after the Merger Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to shares of Parent Common Stock constituting the Share Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.08, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates are surrendered and the holder thereof delivers a properly completed and duly executed letter of transmittal or such Uncertificated Shares are transferred, as the case may be, as provided in this Article IIISection 2.04.
(g) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred by a holder of Company Common Stock in connection with the Merger, and the filing of any related Tax Returns and other documentation with respect to such Taxes and fees, shall be the responsibility solely of such holder.
Appears in 2 contracts
Samples: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall select a reputable bank or trust company to act as Paying Agent in the Merger (the “Paying Agent”) for the payment of (i) the Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to the Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to the Effective Time, in each case, other than the Cancelled Shares and the Subsidiary-held Shares, and except for any Dissenting Shares and (ii) the Option Consideration, PSU Consideration and RSU Consideration payable by the Paying Agent pursuant to Section 3.05. At or immediately after the Effective Time, Ultimate Parent shall cause Parent to, and Parent shall, deposit (or cause to be deposited) deposited with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, Agent cash in an amount of cash sufficient to pay the aggregate Merger Consideration, RSU Consideration, PSU Consideration payable pursuant and Option Consideration required to be paid by the Paying Agent in accordance with this Article III Agreement (such cash shall be referred to in this Agreement as the “Consideration Exchange Fund”). In the event the Consideration Exchange Fund shall be insufficient to pay make the payments in connection with the Merger Consideration (including with respect to Company Common Stock held contemplated by stockholders who did not vote in favor of Section 3.01 or the Merger but who did not exerciseOption Consideration, PSU Consideration or who shall have effectively withdrawn or lostRSU Consideration contemplated by Section 3.05, their rights to appraisal of such Company Common Stock under the DGCL), Ultimate Parent shall cause Parent to, and Parent shall, promptly deliver, (and in any case within two Business Days of learning of any such insufficiency) deposit or cause to be delivered, deposited additional funds to with the Paying Agent in an amount that is equal to the deficiency in the amount required to make such paymentspayment. The Paying Agent shall, pursuant to Table of Contents irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 3.01 and the Option Consideration, PSU Consideration and RSU Consideration contemplated to be issued pursuant to Section 3.05 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.
(b) Promptly As soon as reasonably practicable after the Effective Time (and in any event within five (5) not later than the third Business Days after Day following the Effective Time), Parent shall will cause the Paying Agent to mail send to each stockholder whose holder of record of shares were converted into of Company Common Stock (other than the right to receive Merger Consideration pursuant to Section 3.1: Cancelled Shares and the Subsidiary-held Shares and except for any Dissenting Shares) (i) a letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Book-Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Book-Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, and (ii) instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed .
(c) Upon (i) surrender to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent of Certificates (or effective affidavits of loss in connection with the transfer of a Book Entry Share or surrender of a Certificate lieu thereof) for cancellation to the Paying Agentcancellation, in each case together with such letter of transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and with such other documents as may be reasonably required pursuant to such instructionsinstructions or (ii) compliance with the reasonable procedures established by the Paying Agent for delivery of Book-Entry Shares, the holder of such Book Certificates or Book-Entry Share or Certificate Shares shall be entitled to receive in exchange therefor, subject to any required withholding of Taxesin cash, the Merger Consideration pursuant to in respect of the provisions of this Article IIICompany Common Stock formerly represented by such Certificate or Book-Entry Share, and the Book Certificates or Book-Entry Share so transferred or Certificate Shares so surrendered shall forthwith be cancelled. No interest will shall be paid or will accrue on any cash payable to holders of Book Certificates or Book-Entry Shares or Certificates in connection with, or accrued on, pursuant to the Merger Consideration. provisions of this Article 3.
(d) If any Merger Consideration cash payment is to be paid made to a Person other than the stockholder Person in whose name the Book Entry Share transferred or applicable surrendered Certificate surrendered in exchange therefor is registered, it shall be a condition of precedent to such exchange payment that the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Entry Share transferred or surrendered Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash payable. If any portion of the Merger Consideration is to be registered in the Consideration Fund name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be invested by a condition to the Paying Agent as directed by Parent; provided, however, registration thereof that any such investments the surrendered Certificate shall be properly endorsed or otherwise be in short-term obligations proper form for transfer and that the Person requesting such delivery of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Merger Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds pay to the Paying Agent for the benefit any transfer Taxes required as a result of the Company’s stockholders at the Effective Time such registration in the amount name of such losses to a Person other than the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect registered holder of such Certificate or Book Entry Shares shall, establish to the extent permitted by applicable Law, become the property satisfaction of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for that such lost, stolen Tax has been paid or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIInot payable.
Appears in 1 contract
Samples: Merger Agreement (Brocade Communications Systems Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an exchange agent reasonably acceptable to the Company (or cause the “Exchange Agent”) to be deposited) with act as the Paying Agent, agent for the account and benefit purpose of exchanging for the former holders Merger Consideration for: (i) the Certificates, or (ii) book-entry shares which immediately prior to the Effective Time represented the shares of Company Common StockStock (the “Book-Entry Shares”). On and after the Effective Time, an amount of cash Parent shall deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to this Article III in respect of all of the shares of Company Common Stock and Company Preferred Stock represented by the Certificates and the Book-Entry Shares (such cash shall be referred to in this Agreement as the “Consideration Payment Fund”)) in amounts and at the times necessary for such payments. In If for any reason (including losses) the event the Consideration Payment Fund shall be insufficient is inadequate to pay the Merger Consideration (including with respect amounts to Company Common Stock held by stockholders who did not vote in favor which holders of the Merger but who did not exercise, or who shares shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock be entitled under the DGCLSection 3.01(b), Parent shall promptly deliver, take all steps necessary to enable or cause the Surviving Corporation promptly to be delivered, deposit in trust additional funds to cash with the Paying Exchange Agent in an amount that is equal to the deficiency required sufficient to make such payments.
(b) all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock and Company Preferred Stock for the Merger Consideration. Promptly after the Effective Time (Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Common Stock and in any event within five (5) Business Days after Company Preferred Stock at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of shares of Company Common Stock or Company Preferred Stock that have been converted into the surrender right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Certificates Company Common Stock or transfer Company Preferred Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of the Book Entry Shares in exchange for payment of the Merger Considerationa Certificate, the form together with a duly completed and substance of which validly executed letter of transmittal and instructions shall such other documents as may reasonably be as reasonably agreed to requested by the Company and Parent and prepared prior to the Closing. Upon Exchange Agent, or (ii) receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of Book-Entry Shares. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such Certificate or Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of a Book any Certificate or Book-Entry Share or surrender Share. Upon payment of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred each Certificate or Certificate Certificates so surrendered shall forthwith immediately be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock or Company Preferred Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to or Company Preferred Stock on the Effective Timestock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one holders of shares six (16) year months after the Effective Time shallshall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Common Stock or Company Preferred Stock for the Merger Consideration in accordance with this Section 3.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Common Stock or Company Preferred Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Company Common Stock or Company Preferred Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, be delivered to the property of Parent free and clear of any claims or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment interest of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(f) Notwithstanding Any portion of the foregoing, neither Merger Consideration made available to the Paying Exchange Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered any Dissenting Shares shall be returned to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyedParent, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIdemand.
Appears in 1 contract
Samples: Merger Agreement (Luminex Corp)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, --------------------- Parent shall appoint a United States bank or trust company or other independent financial institution in organized under the laws of the United States (the “ Paying Agent”) that is or any state thereof with capital, surplus and undivided profits of at least $500,000,000 and reasonably acceptable to the Company to act, among other things, act as paying disbursing agent (the "Disbursing Agent") for the Merger and to deliver payment of the Merger ---------------- Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in form and substance reasonably acceptable to former stockholders of the Company. The Company , and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At at or prior to the Effective Time, Parent shall Time deposit (or cause to be deposited) deposited with the Paying Agent, for the account and benefit Disbursing Agent cash in an aggregate amount sufficient to make all of the former payments pursuant to Section 3.02 to holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III Shares (such cash shall be amounts being hereinafter referred to in this Agreement as the “Consideration "Exchange Fund”"). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.-------------
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent and the Surviving Corporation shall cause the Paying Disbursing Agent to mail to each stockholder person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the "Certificates") ------------ and whose shares Shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) 3.02, a form of letter of transmittal, in customary form, that form and substance reasonably satisfactory to the Company (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Disbursing Agent), and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior . Upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Disbursing Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such letter of transmittal, transmittal duly executed and completed in accordance with the instructions thereto, and with such other customary documents as may be required pursuant to such instructionsrequired, the holder of such Book Entry Share or Certificate shall be entitled to receive paid promptly in exchange therefor, subject therefor cash in an amount equal to any required withholding the product of Taxes, the number of Shares represented by such Certificate multiplied by the Merger Consideration pursuant to the provisions of this Article IIIConsideration, and the Book Entry Share so transferred or such Certificate so surrendered shall forthwith be cancelledcanceled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender of the Certificates.
(c) If any Merger Consideration payment is to be paid made to a Person person other than the stockholder person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall payment pay to the Paying Agent any transfer or other Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the stockholder owning registered holder of the Book Entry Share transferred Certificate surrendered or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax has been paid or is not applicable.
(cd) The cash Until surrendered in accordance with the Consideration Fund shall be invested by the Paying Agent as directed provisions of this Section 3.03, each Certificate (other than Certificates representing Shares owned by Parent; provided, however, that Merger Subsidiary or any such investments shall be in short-term obligations other Subsidiary of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit wholly owned Subsidiary of the Company’s stockholders at ) shall represent for all purposes only the Effective Time right to receive the Merger Consideration in cash multiplied by the amount number of Shares evidenced by such losses to the extent the funds in the Consideration Fund are insufficient for such purposesCertificate, which additional funds will be deemed to be part of the Consideration Fundwithout any interest thereon.
(de) At and after the Effective Time, there shall be no registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, all Shares issued and outstanding prior to the Effective Time shall cease to be outstanding and shall automatically be cancelled and cease to exist, and, the holders of Shares 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 the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they such Certificates shall be cancelled canceled and exchanged for the Merger Consideration pursuant to cash as provided in this Article III, except as otherwise provided by Law.
(e) Any portion . At the close of business on the day of the Consideration Fund (including Effective Time, the proceeds stock ledger of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofclosed.
(f) Notwithstanding At any time more than 12 months after the foregoingEffective Time, neither the Paying Disbursing Agent shall upon demand of Parent 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 Certificates 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 them. None of Parent, the Company, the Surviving Corporation nor any party hereto the Disbursing Agent shall be liable to any Person holder of a Certificate for any Merger Consideration delivered in respect of cash from the Consideration Fund delivered such Certificate of Shares to a public official pursuant to any applicable abandoned property, escheat or other similar Lawlaw. If Subject to applicable law and public policy, if any Certificate or Book Entry Share Certificates shall not have been surrendered or transferred, respectively, prior to three years after the Effective Time (or immediately prior to such earlier date on which any Merger Consideration in respect thereof of such Certificate would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable LawEntity), any such Merger Consideration amounts payable in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Lawlaw and public policy, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofperson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Samples: Merger Agreement (International Flavors & Fragrances Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, act as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Time Parent shall deposit appoint an agent (Parent or cause to be depositedsuch agent, as applicable, the “Exchange Agent”) with the Paying Agent, for the account and benefit purpose of the former holders of Company Common Stock, an amount of cash sufficient to pay exchanging for the Merger Consideration payable pursuant to this Article III certificates representing shares of Company Stock, including Company Restricted Stock (such cash shall be referred to in this Agreement as the “Consideration FundCertificates”). In Parent shall make available to the event the Consideration Fund shall be insufficient to pay Exchange Agent, as needed, the Merger Consideration (including with to be paid in respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Certificates. Promptly after the Effective Time (and in any event within five (5) but not later than ten Business Days after the Effective TimeClosing), Parent shall send, or shall cause the Paying Exchange Agent to mail send, to each stockholder whose holder of shares were converted into of Company Stock at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time, a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of shares of Company Stock that have been converted into the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of right to receive the Merger Consideration, the form and substance of which letter of transmittal and instructions Consideration shall be as reasonably agreed entitled to by the Company and Parent and prepared prior receive, upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant in respect of the Company Stock represented by such Certificate, but subject to Section 2.08. The shares of Parent Stock constituting part of such Merger Consideration, at Parent’s option, shall be in uncertificated book-entry form; provided that, except with respect to shares then held in the provisions Escrow Account, if such shares of this Article IIIParent Stock are in uncertificated book-entry form, and upon request by the Book Entry Share so transferred Stockholder Representative or Certificate any Stockholder, Parent shall provide to such Person a certificate of Parent’s transfer agent of the registration of such shares of Parent Stock in the name of the applicable Stockholder. Until so surrendered or transferred, as the case may be, each such Certificate shall forthwith be cancelled. No interest will be paid represent after the Effective Time for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor Certificate, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeStock. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund (including made available to the proceeds of any investments thereofExchange Agent pursuant to Section 2.03(a) that remains unclaimed by the former holders of shares of Company stockholders one (1) year Stock twelve months after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged shares of Company Stock for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration Consideration, and any dividends and distributions with respect thereto, in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Stock for any amounts paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate Any amounts remaining unclaimed by holders of shares of Company Stock two years after the Effective Time (or Book Entry Share shall not have been surrendered or transferredsuch earlier date, respectively, immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority) shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If No dividends or other distributions with respect to Parent Stock constituting part of the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 2.05, shall be paid to the holder of any Certificate Certificates not surrendered until such Certificates are surrendered as provided in this Section. Following such surrender, there shall be paid, without interest, to the Person in whose name the shares of Parent Stock have been lostregistered, stolen at the time of such surrender or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedtransfer, the Paying Agent shall issue amount of any cash payable in exchange for such lost, stolen or destroyed Certificate the Merger Consideration lieu of fractional shares to which such Person is entitled in respect pursuant to Section 2.05 and the amount of all dividends or other distributions, if any, with a record date after the Effective Time previously paid or payable on the date of such Certificate pursuant surrender with respect to this Article IIIsuch shares of Parent Stock; provided that all dividends and distributions with respect to the Escrow Shares shall be held in the Escrow Account together with the associated Escrow Shares.
Appears in 1 contract
Samples: Merger Agreement (Patriot Coal CORP)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank or and trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent (the “Paying Agent”) for the purpose of exchanging for the Merger and to deliver Consideration (i) certificates representing Shares (the Merger Consideration to former stockholders of “Certificates”) or (ii) uncertificated Shares (the Company“Uncertificated Shares”). The Company and Parent shall enter into a Paying Agent paying agent agreement with the Paying Agent, Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or Agreement and otherwise reasonably acceptable to the Company and Parent prior to the Effective Acceptance Time. On the date of the Closing, Parent shall deposit with the Paying Agent (or shall cause the Company to be deposited) deposit with the Paying Agent), for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration aggregate Offer Price payable pursuant to this Article III Section 2.01(e) and the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares (such cash shall be referred to in this Agreement as cash, the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect on account of any Merger Consideration returned to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights Parent pursuant to appraisal of such Company Common Stock under the DGCLSection 3.03(g)), Parent shall promptly deliver, or cause to be delivereddelivered (including by causing the Surviving Corporation, following the Effective Time, to deliver), additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) . Promptly after the Effective Time (and in any event within five three (53) Business Days after the Effective Time), Parent the Company shall send, or shall cause the Paying Agent to mail send, to each stockholder whose shares were converted into holder of Shares at the right to receive Effective Time (other than Parent or Merger Consideration pursuant to Section 3.1: (i) Sub), a letter of transmittal, transmittal and instructions in customary form, that form (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent and (iiAgent) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Considerationsuch exchange, with the form and substance of which such letter of transmittal and instructions shall to be as reasonably agreed to by Parent and the Company and Parent and prepared prior to the Closing. Upon Acceptance Time.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry payable for each such Share so transferred represented by such Certificate or Certificate for each such Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall forthwith be cancelled. No interest will be paid represent after the Effective Time for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, receive the Merger Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any such Shares.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent and Parent that such Tax has been paid or is not applicablepayable.
(cd) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty three (303) days months or guaranteed by the United States of America and backed by the full faith and credit of the United StatesStates of America. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.03(a) and shall be paid as Parent it directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent any Person from promptly making the payments required by this Article III3, and following any losses from any such investment, Parent shall promptly provide (or shall cause the Company to promptly provide following the Effective Time) additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(de) At From and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law3.
(ef) Any portion of the Merger Consideration Fund made available to the Paying Agent pursuant to Section 3.03(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former Company stockholders holders of Shares that have been converted into the right to receive the Merger Consideration one (1) year after the Effective Time shallTime, to the extent permitted by applicable Applicable Law, shall be delivered returned to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.03(a), upon demand, and any such holder who has not theretofore complied exchanged such Shares for the Merger Consideration in accordance with this Article III with respect Section 3.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment such party only as general creditors of their claim for such party with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Uncertificated Shares held by them, without interest and subject to any withholding of Taxes required by Applicable Law in respect thereof.
(f) accordance with Section 3.08. Notwithstanding the foregoing, neither Parent, the Paying Agent Company nor any party hereto of their Affiliates shall be liable to any Person in respect holder of cash from the Consideration Fund delivered Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not Any amounts remaining unclaimed by holders of Shares that have been surrendered converted into the right to receive the Merger Consideration two (2) years after the Effective Time (or transferred, respectively, such earlier date immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, Authority) shall become to the extent permitted by applicable Law, become Applicable Law the property of Parent or the Surviving CorporationCompany, as applicable, free and clear of any stockholder claims or interest of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory Merger Consideration made available to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIISection 3.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.03(a), upon demand.
Appears in 1 contract
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank or trust company or other independent nationally recognized financial institution in reasonably acceptable to Parent and the United States Company (the “ Paying “Exchange Agent”) that is for the purpose of exchanging for the Merger Consideration (i) certificates representing Company Shares (the “Certificates”) or (ii) uncertificated Company Shares (the “Uncertificated Shares”). The Exchange Agent agreement pursuant to which Parent shall appoint the Exchange Agent shall be in form and substance reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this AgreementParent. At or prior to the Effective Time, Parent shall deposit (with or cause otherwise make available to be deposited) with the Paying Exchange Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable to be paid in respect of the Certificates and the Uncertificated Shares (other than the Company Restricted Stock) and the Company Equity Award Consideration in respect of the Non-Employee Holders (and, if determined by Parent pursuant to this Article III (such cash shall be referred Section 2.04(e), all or a portion of the Company Equity Award Consideration to in this Agreement as all or a portion of the “Consideration Fund”Employee Holders). In the event the Consideration Fund shall be insufficient Parent agrees to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds make available to the Paying Agent in an amount that Exchange Agent, from time to time as needed, any dividends or distributions to which such holder is equal entitled pursuant to the deficiency required to make such payments.
(b) Section 2.03(f). Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Timethereafter), Parent shall send, or shall cause the Paying Exchange Agent to mail send, to each stockholder whose shares were converted into holder of Company Shares at the right to receive Merger Consideration pursuant to Section 3.1: Effective Time (i) other than the Company Restricted Stock), a letter of transmittal, transmittal and instructions in customary form, that form and reasonably acceptable to the Company (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Exchange Agent and shall include customary provisions with respect to delivery of an “agent’s message” regarding book-entry transfer of Uncertificated Shares) for use in such exchange. Such letter of transmittal shall be in the form and have such provisions as Parent and the Company may reasonably agree.
(b) Each holder of Company Shares that have been converted into the right to receive the Merger Consideration (other than the Company Restricted Stock) shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration payable for each such Company Share represented by such Certificate or for each such Uncertificated Share. The Parent Shares constituting part of such Merger Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a Book Entry physical certificate is required under Applicable Law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration and the right to receive any dividends or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required distributions pursuant to such instructionsSection 2.03(f). At the time set forth in Section 2.04(e), the holder of such Book Entry Share or Certificate each Non-Employee Holder shall be entitled to receive in exchange thereforsuch Non-Employee Holder’s Company Equity Award Consideration and, subject if determined by Parent pursuant to Section 2.04(e), all or a portion of the Company Equity Award Consideration payable to all or a portion of the Employee Holders shall be paid pursuant to this Section 2.03. No interest shall be paid or shall accrue on any required withholding cash payable upon surrender of Taxes, any Company Shares or upon the Company Equity Award Consideration.
(c) If any portion of the Merger Consideration pursuant to (other than in respect of the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration Company Restricted Stock) is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Transfer Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent and Parent that such Transfer Tax has been paid or is not applicable.
payable. The payment of any transfer, documentary, sales, use, stamp, registration, value-added and other Taxes and fees (cincluding any penalties and interest) The cash (“Transfer Taxes”) incurred solely by a holder of Company Shares in connection with the Consideration Fund shall be invested by Merger and any other transactions contemplated hereby, and the Paying Agent as directed by Parent; providedfiling of any related Tax Returns, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount responsibility of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundholder.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Surviving Corporation or the Paying Agent for any reasonExchange Agent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund made available to the Exchange Agent pursuant to Section 2.03(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former holders of Company stockholders one (1) year Shares that have been converted into the right to receive the Merger Consideration nine months after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged such Company Shares for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for for, and Parent shall remain liable for, payment of their claim for the Merger Consideration Consideration, and any dividends and distributions with respect thereto pursuant to Section 2.03(f), in respect thereof.
(f) of such Company Shares without any interest thereon and subject to any withholding of Taxes required by Applicable Law in accordance with this Section 2.03(e). Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered Company Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not Any amounts remaining unclaimed by holders of Company Shares that have been surrendered converted into the right to receive the Merger Consideration two years after the Effective Time (or transferred, respectively, such earlier date immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority) shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If No dividends or other distributions with respect to securities of Parent constituting part of the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 2.06, shall be paid to the holder of any Certificate Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section 2.03. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been lostregistered, stolen at the time of such surrender or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedtransfer, the Paying Agent shall issue amount of any cash payable in exchange for such lost, stolen or destroyed Certificate the Merger Consideration lieu of fractional shares to which such Person is entitled in respect pursuant to Section 2.06 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such Certificate pursuant surrender or transfer with respect to this Article IIIsuch securities.
Appears in 1 contract
Samples: Merger Agreement (Denbury Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingAcceptance Time, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is an agent reasonably acceptable to the Company to act, among other things, as paying agent (the “Exchange Agent”) for the Merger and to deliver purpose of paying the Merger Consideration to former stockholders of the Companyas provided in Section 2.2(a). The Company and Parent shall enter into a Paying Agent agreement with provide (or shall cause to be provided) to the Paying Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At at or prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III in respect of (i) certificated shares of Company Common Stock (the certificates representing such certificated shares, the “Certificates”) and (ii) the uncertificated shares of Company Common Stock (the “Uncertificated Shares”) (but not, for the avoidance of doubt, the Company PSU Consideration and the Company RSU Consideration) (such cash shall be referred to in this Agreement as cash, the “Consideration Exchange Fund”). In If, for any reason (including losses) the event the Consideration Exchange Fund shall be insufficient is inadequate to pay the Merger Consideration (including with in respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exerciseCertificates and the Uncertificated Shares (excluding, or who shall have effectively withdrawn or lostfor the avoidance of doubt, their rights to appraisal of such the Company Common Stock under PSU Consideration and the DGCLCompany RSU Consideration), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly deliverto deposit in trust additional cash with the Exchange Agent sufficient to pay all such amounts, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. All cash deposited with the Exchange Agent shall only be used for the purposes provided in this Agreement, or cause to be delivered, additional funds to as otherwise agreed by the Paying Agent in an amount that is equal to Company and Parent before the deficiency required to make such payments.
(b) Effective Time. Promptly after the Effective Time (and but in any no event within later than five (5) Business Days after the Effective Time), Parent shall cause the Paying Exchange Agent to mail send to each stockholder whose holder of shares were converted into of Company Common Stock as of immediately prior to the right to receive Merger Consideration pursuant to Section 3.1: Effective Time (iother than Parent or any Subsidiary of Parent) a letter of transmittal, in customary formform and substance reasonably acceptable to the Surviving Corporation, that and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Exchange Agent) for use in such exchange.
(b) Each former holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent and of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to in respect of the provisions of this Article III, and the Book Entry Share so transferred Company Common Stock represented by a Certificate or Certificate Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall forthwith be cancelledrepresent after the Effective Time for all purposes only the right to receive such Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to former holders of Book Entry Shares Certificates or Certificates in connection with, or accrued on, the Merger Consideration. Uncertificated Shares.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay in advance to the Paying Exchange Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no transfers on the share transfer books of the Company shall be closed and thereafter there shall be no further registration of the transfers of shares of Company Common Stock that were outstanding immediately prior to the Effective TimeStock. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonExchange Agent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by LawII.
(e) Any portion of the Merger Consideration Fund (including made available to the proceeds of any investments thereofExchange Agent pursuant to Section 2.3(a) that remains unclaimed by the former holders of shares of Company stockholders Common Stock one (1) year after the Effective Time shallshall be returned to Parent, upon demand, and any such former holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.3 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such cancelled shares without any interest thereon. Notwithstanding the foregoing, none of Parent, the Surviving Corporation or the Exchange Agent shall be liable to any former holder of shares of Company Common Stock for any amounts paid to a public official or any Governmental Authority pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by former holders of shares of Company Common Stock immediately prior to such time when such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by applicable Law, be delivered to the property of Parent free and clear of any claims or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment interest of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(f) Notwithstanding The agreement with the foregoingExchange Agent shall provide that the Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent or, neither after the Paying Agent nor Effective Time, the Surviving Corporation; provided, that (i) no such investment (including any party hereto losses thereon) shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of relieve Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with Exchange Agent from making the payments required by this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
II, (gii) If any Certificate no such investment shall have been lost, stolen maturities that could prevent or destroyed, upon the making of an affidavit of that fact delay payments to be made pursuant to this Agreement and (which affidavit iii) all such investments shall be in a form reasonably satisfactory (w) short-term direct obligations of the United States of America, (x) short-term obligations for which the full faith and credit of the United States of America is pledged to Parent provide for the payment of principal and interest, (y) short-term commercial paper rated the Paying Agenthighest quality by either Xxxxx’x Investors Service, Inc. or Standard and Poor’s Ratings Services or (z) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $10 billion. Any interest or income produced by such investments will be payable to the Person claiming such certificate to be lostSurviving Corporation or Parent, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIas directed by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (TherapeuticsMD, Inc.)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint a bank or trust company organized under the laws of the United States or any state thereof with capital, surplus and undivided profits of at least $500,000,000 and reasonably acceptable to the Company to act as disbursing agent (the "DISBURSING AGENT") for the payment of the Merger Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in form and substance reasonably acceptable to the Company, and Parent shall at or prior to the Effective Time deposit (or cause to be deposited) deposited with the Paying Agent, for the account and benefit Disbursing Agent cash in an aggregate amount sufficient to make all of the former payments pursuant to Section 3.02 to holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III Shares (such cash shall be amounts being hereinafter referred to in this Agreement as the “Consideration Fund”"EXCHANGE FUND"). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent and the Surviving Corporation shall cause the Paying Disbursing Agent to mail to each stockholder person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the "CERTIFICATES") and whose shares Shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) 3.02, a form of letter of transmittal, in customary form, that form and substance reasonably satisfactory to the Company (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Disbursing Agent), and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior . Upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Disbursing Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such letter of transmittal, transmittal duly executed and completed in accordance with the instructions thereto, and with such other customary documents as may be required pursuant to such instructionsrequired, the holder of such Book Entry Share or Certificate shall be entitled to receive paid promptly in exchange therefor, subject therefor cash in an amount equal to any required withholding the product of Taxes, the number of Shares represented by such Certificate multiplied by the Merger Consideration pursuant to the provisions of this Article IIIConsideration, and the Book Entry Share so transferred or such Certificate so surrendered shall forthwith be cancelledcanceled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender of the Certificates.
(c) If any Merger Consideration payment is to be paid made to a Person person other than the stockholder person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall payment pay to the Paying Agent any transfer or other Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the stockholder owning registered holder of the Book Entry Share transferred Certificate surrendered or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax has been paid or is not applicable.
(cd) The cash Until surrendered in accordance with the Consideration Fund shall be invested by the Paying Agent as directed provisions of this Section 3.03, each Certificate (other than Certificates representing Shares owned by Parent; provided, however, that Merger Subsidiary or any such investments shall be in short-term obligations other Subsidiary of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit wholly owned Subsidiary of the Company’s stockholders at ) shall represent for all purposes only the Effective Time right to receive the Merger Consideration in cash multiplied by the amount number of Shares evidenced by such losses to the extent the funds in the Consideration Fund are insufficient for such purposesCertificate, which additional funds will be deemed to be part of the Consideration Fundwithout any interest thereon.
(de) At and after the Effective Time, there shall be no registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, all Shares issued and outstanding prior to the Effective Time shall cease to be outstanding and shall automatically be cancelled and cease to exist, and, the holders of Shares 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 the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they such Certificates shall be cancelled canceled and exchanged for the Merger Consideration pursuant to cash as provided in this Article III, except as otherwise provided by Law.
(e) Any portion . At the close of business on the day of the Consideration Fund (including Effective Time, the proceeds stock ledger of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofclosed.
(f) Notwithstanding At any time more than 12 months after the foregoingEffective Time, neither the Paying Disbursing Agent shall upon demand of Parent 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 Certificates 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 them. None of Parent, the Company, the Surviving Corporation nor any party hereto the Disbursing Agent shall be liable to any Person holder of a Certificate for any Merger Consideration delivered in respect of cash from the Consideration Fund delivered such Certificate of Shares to a public official pursuant to any applicable abandoned property, escheat or other similar Lawlaw. If Subject to applicable law and public policy, if any Certificate or Book Entry Share Certificates shall not have been surrendered or transferred, respectively, prior to three years after the Effective Time (or immediately prior to such earlier date on which any Merger Consideration in respect thereof of such Certificate would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable LawEntity), any such Merger Consideration amounts payable in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Lawlaw and public policy, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofperson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint a bank or trust company reasonably satisfactory to the Company to act as paying agent (or cause the "Paying Agent") for the payment of Merger Consideration upon surrender of certificates representing the Shares. Prior to be deposited) the Effective Time, Parent will enter into a paying agent agreement with the Paying Agent, for and at such times, and from time to time, as the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient Paying Agent requires funds to pay the Merger Consideration payable make payment pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCLSection 2.06(b), Parent shall promptly deliver, deposit or cause to be delivered, additional funds to deposited with the Paying Agent cash in an aggregate amount necessary to make the payments pursuant to Section 2.06(b) to holders of Shares (such amounts being hereinafter referred to as the "Exchange Fund"). The Paying Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is equal pledged to provide for the deficiency payment of principal and interest, or (iii) commercial paper rated the highest quality by either Xxxxx'x Investors Services, Inc. or Standard & Poor's Corporation; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 2.06(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 2.06(b) shall be promptly paid to Parent. To the extent that there are losses with respect to such investments or the funds available diminish for other reasons below the level required to make such prompt payments of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore funds to ensure that the funds available are at a level sufficient to make payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent The Surviving Corporation shall cause instruct the Paying Agent to mail promptly after the Effective Time, but in any event no later than the fifth Business Day thereafter, to each stockholder person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the "Certificates"), and whose shares Shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) 2.06(b), a form of letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (iishall be in such form and have such other provisions as are reasonable and customary in transactions such as the Merger) and instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentAgent for cancellation, in each case together with such letter of transmittal, transmittal duly executed and completed in accordance with the instructions thereto, and with such other documents as may be reasonably required pursuant to such instructionsby the Paying Agent, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefortherefor the Merger Consideration payable in respect of that Certificate, subject to less any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or such Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender of the Certificates.
(c) If any Merger Consideration payment is to be paid made to a Person person other than the stockholder person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall payment pay to the Paying Agent any transfer or other Taxes required by reason of the payment of the Merger Consideration to a Person person other than the stockholder owning registered holder of the Book Entry Share transferred Certificate surrendered or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax has been paid or is not applicable.
(cd) The cash Until surrendered in accordance with the Consideration Fund shall be invested provisions of this Section 2.07, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Shares held by the Paying Agent as directed by Parent; providedCompany and Dissenting Shares) shall represent for all purposes, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States from and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at after the Effective Time in Time, only the amount of such losses right to receive the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundapplicable Merger Consideration.
(de) At and after the Effective Time, there shall be no registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that Shares 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 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. The Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they such Certificates shall be cancelled and exchanged for the Merger Consideration pursuant to cash as provided in this Article III, except as otherwise provided by LawII. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(ef) Any portion of the Merger Consideration Fund (including made available to the proceeds of Paying Agent to pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand. At any investments thereof) that remains unclaimed by the former Company stockholders one (1) year time more than nine months after the Effective Time Time, the Paying Agent shall upon demand of Parent deliver to it any funds which had been made available to the Paying Agent and not disbursed in exchange for Certificates (including all interest and other income received by the Paying Agent in respect of all such funds). Thereafter, holders of Certificates shall look only to 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 that may be payable, without interest, upon due surrender of the Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of any governmental unit or agency, shall, to the extent permitted by applicable Lawlaw, be delivered to Parent or become the property of the Surviving Corporation for no considerationCorporation, free and clear of all claims or interest of any person previously entitled thereto. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither none of Parent, the Company, the Surviving Corporation or the Paying Agent nor any party hereto shall be liable to any Person holder of a Certificate for any Merger Consideration delivered in respect of cash from the Consideration Fund delivered such Certificate of Shares to a public official pursuant to any applicable abandoned property, escheat or other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereoflaw.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Samples: Merger Agreement (Prima Energy Corp)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging shares of Company Common Stock for the Merger Consideration payable in respect thereof. As soon as reasonably practicable after the Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of one or more Certificates as of the Effective Time, whose shares of Company Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 2.6 (Effect on Capital 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 Exchange Agent) in such form as Parent may specify subject to the Company’s reasonable approval prior to the Effective Time, including instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the Merger Consideration. At the Effective Time, Parent shall cause to be deposited) deposited with the Paying Exchange Agent, for the account and benefit of the former holders of shares of Company Common Stock, shares of Parent Common Stock (which shall be in non-certificated book-entry form) to be issued pursuant to Section 2.6 (Effect on Capital Stock) and an amount of cash in U.S. dollars sufficient to be paid pursuant to Section 3.5 (No Fractional Shares), payable to holders of the Book-Entry Shares or payable to the holders of Certificates upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof), in each case, pursuant to the provisions of Article II and this Article III. Following the Effective Time, Parent agrees to make available to the Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay the Merger Consideration payable any dividends pursuant to this Article III Section 3.1(f) (such Dividends). All cash and book-entry shares representing Parent Common Stock deposited with the Exchange Agent shall be referred to in this Agreement as the “Consideration Exchange Fund”). In the event the Consideration Fund The Exchange Agent shall be insufficient to pay deliver the Merger Consideration (including with respect and any cash to Company be paid in lieu of any fractional share of Parent Common Stock held by stockholders who did not vote in favor accordance with Section 3.5 (No Fractional Shares) or cash to be paid for dividends in accordance with Section 3.1(f)) out of the Merger but who did Exchange Fund. The Exchange Fund shall not exercisebe used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent. Any interest and other income resulting from such investments shall be the property of, or who shall have effectively withdrawn or lostand paid to, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsParent.
(b) Promptly after the Effective Time (and in any event within five (5Each holder of one or more Certificate(s) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose representing shares were of Company Common Stock that have been converted into the right to receive the Merger Consideration pursuant Consideration, upon surrender to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery the Exchange Agent of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates Certificate(s) (or affidavits effective affidavit of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration), the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may reasonably be required pursuant to such instructionsby the Exchange Agent, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefortherefor (i) the number of whole shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, subject in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.6 (Effect on Capital Stock), (ii) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, without interest (less any required withholding Tax withholding). Until so surrendered, each such Certificate shall, after the Effective Time, represent for all purposes only the right to receive such (A) Merger Consideration, (B) cash in lieu of Taxesany fractional shares and (C) unpaid dividends. No holder of Book-Entry Shares shall be required to deliver a Certificate or completed letter of transmittal to the Exchange Agent to receive (1) the number of whole shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the Merger Consideration whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to the provisions Section 2.6 (Effect on Capital Stock), (2) if applicable, any cash to be paid in lieu of this Article IIIany fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelledany dividends in accordance with Section 3.1(f) (Dividends), in each case, without interest (less any required Tax withholding). No interest will shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or unpaid dividends payable to holders of Book Certificates or Book-Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicableShares.
(c) The cash With respect to Certificate(s), in the Consideration Fund shall event of a transfer of ownership of any Certificate that is not registered in the transfer books of the Company as of the Effective Time, (i) any Merger Consideration, (ii) if applicable, any cash to be invested paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, may be issued or paid to such a transferee if the Certificate is presented to the Exchange Agent, properly endorsed or otherwise in proper form for transfer, accompanied by the Paying Agent as directed by Parent; provided, however, all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable, in each case, in form and substance, reasonably satisfactory to the Exchange Agent. With respect to Book-Entry Shares, issuance or payment of (1) any Merger Consideration, (2) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, shall only be made to the Person in whose name such investments shall be Book-Entry Shares are registered in short-term obligations the stock transfer books of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit Company as of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration FundTime.
(d) At From and after the Effective Time, there shall be no further registration of transfers on of shares of Company Common Stock. From and after the share transfer books Effective Time, the holders of the Company of the Certificates representing shares of Company Common Stock that were outstanding immediately prior to the Effective TimeTime 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. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation Exchange Agent or the Paying Agent for any reasonParent, they shall be cancelled and exchanged for the Merger Consideration pursuant to consideration provided for, and in accordance with the procedures set forth, in Article II and this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders Common Stock one (1) year after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged his or her shares of Company Common Stock for the Merger Consideration in accordance with this Article III with respect Section 3.1 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment delivery of their claim for the Merger Consideration in respect thereof.
(f) of such holder’s shares of Company Common Stock. Notwithstanding the foregoing, neither Parent, Merger Sub, nor the Paying Agent nor any party hereto Company shall be liable to any Person holder of shares of Company Common Stock for any Merger Consideration, cash in respect lieu of cash from the Consideration Fund fractional shares or any unpaid dividends delivered to a public official any Governmental Entity pursuant to any applicable abandoned propertyproperty Laws. Any Merger Consideration, escheat cash in lieu of fractional shares or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, unpaid dividends remaining unclaimed by holders of shares of Company Common Stock immediately prior to the date on which any Merger Consideration in respect thereof such time as such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If any Certificate shall have been lost, stolen or destroyed, upon No dividends with respect to shares of Parent Common Stock issued in the making of an affidavit of that fact (which affidavit Merger shall be paid to the holder of any Certificates or Book-Entry Shares until such Certificates or Book-Entry Shares are surrendered or transferred, as applicable, as provided in a form reasonably satisfactory this Section 3.1. Following such surrender, subject to the effect of escheat or abandoned property (in accordance with Section 3.1(e)), Tax or other applicable Law, shall be paid, without interest, to the record holder of the shares of Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue Common Stock issued in exchange for therefor (i) at the time of such lostsurrender, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled all dividends payable in respect of such Certificate shares of Parent Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends payable with respect to such shares of Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends in respect of shares of Parent Common Stock, all shares of Parent Common Stock to be issued pursuant to this Article IIIthe Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
Appears in 1 contract
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Merger Subsidiary shall appoint a bank or trust company reasonably satisfactory to the Company to act as disbursing agent (the "Disbursing Agent") for the payment of Merger Consideration upon surrender of certificates representing the Shares. Prior to the Effective Time, Merger Subsidiary will enter into a disbursing agent agreement with the Disbursing Agent, and Parent shall cause Merger Subsidiary to deposit with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 3.06(b) to holders of Shares (or cause such amounts being hereinafter referred to as the "Exchange Fund") prior to the time such payments are to be made by the Disbursing Agent. For purposes of determining the amount to be so deposited) with the Paying Agent, for the account and benefit Merger Subsidiary shall assume that no stockholder of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights will perfect any right to appraisal of his, her or its Shares. The Disbursing Agent shall invest the Exchange Fund as directed by Merger Subsidiary; provided that such Company Common Stock investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (iii) commercial paper rated the highest quality by either Moody's Investors Services, Inc. or Standard & Poor's Corporation; prxxxxxx further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.06(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under the DGCL)Section 3.06(b) shall be promptly paid to Parent. Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, promptly deliver, or cause to be delivered, additional funds replenish the Exchange Fund to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsextent of any investment losses.
(b) Promptly after Merger Subsidiary shall instruct the Effective Time (and in any event within five (5) Business Days Disbursing Agent to mail promptly after the Effective Time, but in any event no later than the fifth Business Day thereafter, to each person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the "Certificates"), Parent shall cause the Paying Agent to mail to each stockholder and whose shares Shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) 3.06(b), a form of letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Disbursing Agent and (iishall be in such form and have such other provisions as are reasonable and customary in transactions such as the Merger) and instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentDisbursing Agent for cancellation, in each case together with such letter of transmittal, transmittal duly executed and completed in accordance with the instructions thereto, and with such other documents as may be reasonably required pursuant to such instructionsby the Disbursing Agent, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefortherefor the Merger Consideration payable in respect of that Certificate, subject to less any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or such Certificate so surrendered shall forthwith be cancelledcanceled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender of the Certificates.
(c) If any Merger Consideration payment is to be paid made to a Person person other than the stockholder person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall payment pay to the Paying Agent any transfer or other Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the stockholder owning registered holder of the Book Entry Share transferred Certificate surrendered or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax has been paid or is not applicable.
(cd) The cash Until surrendered in accordance with the Consideration Fund shall be invested provisions of this Section 3.07, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Shares held by the Paying Agent as directed by Parent; providedCompany and Dissenting Shares) shall represent for all purposes, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States from and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at after the Effective Time in Time, only the amount of such losses right to receive the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundapplicable Merger Consideration.
(de) At and after the Effective Time, there shall be no registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that Shares 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 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. The Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they such Certificates shall be cancelled and exchanged for the Merger Consideration pursuant to cash as provided in this Article III, except as otherwise provided by Law. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(ef) Any portion of the Merger Consideration Fund (including made available to the proceeds of Disbursing Agent to pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand. At any investments thereof) that remains unclaimed by the former Company stockholders one (1) year time more than nine months after the Effective Time Time, the Disbursing Agent shall upon demand of Parent deliver to it any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of Certificates shall look only to 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 that may be payable, without interest, upon due surrender of the Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of any governmental unit or agency, shall, to the extent permitted by applicable Lawlaw, be delivered to Parent or become the property of the Surviving Corporation for no considerationCorporation, free and clear of all claims or interest of any person previously entitled thereto. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither none of Parent, the Paying Company, the Surviving Corporation or the Disbursing Agent nor any party hereto shall be liable to any Person holder of a Certificate for any Merger Consideration delivered in respect of cash from the Consideration Fund delivered such Certificate of Shares to a public official pursuant to any applicable abandoned property, escheat or other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereoflaw.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
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Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall will appoint a United States bank or trust company or other independent financial institution in the United States an exchange agent reasonably acceptable to OUTD (the “ Paying “Exchange Agent”) for the purpose of exchanging OUTD Certificates for OUTD Merger Consideration. As soon as reasonably practicable after the Effective Time, but in no event more than two Business Days following the Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of No Election Shares as of the Effective Time, whose shares of OUTD Common Stock were converted into the right to receive the OUTD Merger Consideration, a letter of transmittal (which will specify that is reasonably acceptable the delivery will be effected, and risk of loss and title will pass, only upon proper delivery of the OUTD Certificates (or effective affidavits of loss in lieu thereof) to the Company Exchange Agent) in such form as Parent and OUTD may reasonably agree, including instructions for use in effecting the surrender of OUTD Certificates (or effective affidavits of loss in lieu thereof) to act, among other things, as paying agent the Exchange Agent in exchange for the OUTD Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. Consideration.
(b) At or prior to the Effective Time, Parent shall deposit (or will cause to be deposited) deposited with the Paying Exchange Agent, in trust for the account and benefit of the former holders of Company shares of OUTD Common Stock, shares of Parent Common Stock and an amount of cash sufficient to pay the Merger Consideration payable be issued and paid in lieu of fractional shares pursuant to Section 2.11 and pursuant to Section 2.1 and Section 2.2, payable upon due surrender of the OUTD Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article III (such II. Following the Effective Time, Parent will make available to the Exchange Agent, when and as needed, cash shall be sufficient to pay any dividends and other distributions pursuant to Section 2.4(g). All cash and book-entry shares representing shares of Parent Common Stock deposited with the Exchange Agent are referred to in this Agreement as the “Consideration Exchange Fund”). In .” The Exchange Agent will, pursuant to irrevocable instructions, deliver the event the Consideration Fund shall be insufficient to pay the appropriate OUTD Merger Consideration (including with respect out of the Exchange Fund. The Exchange Fund will not be used for any other purpose. The Exchange Agent will invest any cash included in the Exchange Fund as directed by Parent; provided, that no such investment or losses thereon will affect the OUTD Merger Consideration payable to Company holders of shares of OUTD Common Stock held by stockholders who did not vote entitled to receive such consideration or cash in favor lieu of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), fractional interests and Parent shall will promptly deliver, or cause to be delivered, provided additional funds to the Paying Exchange Agent for the benefit of holders of shares of OUTD Common Stock entitled to receive such consideration in an the amount that is equal to of any such losses. Any interest and other income resulting from such investments will be the deficiency required to make such paymentsproperty of, and paid to, Parent.
(bc) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose Each holder of shares were of OUTD Common Stock that have been converted into the right to receive the OUTD Merger Consideration pursuant to Section 3.1: (i) a letter of transmittalConsideration, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title upon surrender to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery Exchange Agent of the Certificates an OUTD Certificate (or effective affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration), the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may reasonably be required pursuant to such instructionsby the Exchange Agent, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefortherefor (i) the number of shares of Parent Common Stock representing, subject to any required withholding of Taxesin the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive and/or (ii) a check in the amount, if any, that such holder has the right to receive in cash, including cash payable in lieu of fractional shares payable pursuant to Section 2.11 and any dividends and other distributions payable pursuant to Section 2.4(g), pursuant to Section 2.1, Section 2.2 and this Article II. The OUTD Merger Consideration pursuant will be paid as promptly as practicable (by mail or, to the provisions extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of this Article IIIan OUTD Certificate) after receipt by the Exchange Agent of the OUTD Certificate and letter of transmittal in accordance with the foregoing, and in any event no later than three Business Days following the Book Entry Share so transferred or later to occur of (i) the Effective Time, and (ii) the Exchange Agent’s receipt of the OUTD Certificate so surrendered shall forthwith be cancelledand letter of transmittal in accordance with the foregoing. No interest will be paid or accrued on any OUTD Merger Consideration, cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. OUTD Certificates.
(d) If any Merger Consideration cash payment is to be paid made to a Person other than the stockholder Person in whose name the Book Entry Share transferred or applicable surrendered OUTD Certificate surrendered in exchange therefor is registered, it shall will be a condition of such exchange payment that the Person requesting such exchange shall payment will pay to the Paying Agent any transfer or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Entry Share transferred surrendered OUTD Certificate or Certificate surrendered, or shall will establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicablepayable. If any portion of the OUTD Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered OUTD Certificate is registered, it will be a condition to the registration thereof that the surrendered OUTD Certificate will be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the OUTD Merger Consideration will pay to the Exchange Agent any transfer or other similar Taxes required as a result of such registration in the name of a Person other than the registered holder of such OUTD Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(ce) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at After the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposesTime, which additional funds there will be deemed to be part no further registration of the Consideration Fund.
(d) At transfers of shares of OUTD Common Stock. From and after the Effective Time, there shall be no transfers on the share transfer books holders of the Company of the OUTD Certificates representing shares of Company OUTD Common Stock that were outstanding immediately prior to the Effective TimeTime will cease to have any rights with respect to such shares of OUTD Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, OUTD Certificates or Book Entry Shares are presented to the Surviving Corporation Exchange Agent or the Paying Agent for any reasonParent, they shall will be cancelled and exchanged for the Merger Consideration pursuant to consideration provided for, and in accordance with the procedures set forth in this Article IIIII. Notwithstanding anything to the contrary contained in this Agreement, except as otherwise provided the OUTD Surviving Corporation is obligated to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by LawOUTD on shares of OUTD Common Stock in accordance with the terms of this Agreement prior to the date hereof and which remain unpaid at the Effective Time.
(ef) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders holders of shares of OUTD Common Stock one (1) year after the Effective Time shallwill be returned to Parent, upon demand, and any such holder who has not exchanged his or her shares of OUTD Common Stock for the OUTD Merger Consideration in accordance with this Article II prior to that time will thereafter look only to Parent for delivery of the OUTD Merger Consideration in respect of such holder’s shares of OUTD Common Stock. Notwithstanding the foregoing, none of Parent, IM, IM Merger Sub, OUTD Merger Sub, the OUTD Surviving Corporation or OUTD will be liable to any holder of shares of OUTD Common Stock for any OUTD Merger Consideration delivered to a public official pursuant to applicable abandoned property Laws. Any OUTD Merger Consideration remaining unclaimed by holders of shares of OUTD Common Stock immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Authority will, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable LawLaws, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If No dividends or other distributions with respect to shares of Parent Common Stock issued in the OUTD Merger will be paid to the holder of any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be unsurrendered OUTD Certificates until such OUTD Certificates are surrendered as provided in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.this
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Surrender and Payment. (a) As promptly as practicable after the date hereof, Parent shall appoint an agent (the “Paying Agent”), which Paying Agent shall be reasonably satisfactory to the Company, for the purpose of exchanging for the consideration contemplated hereby (i) certificates representing Common Shares (the “Certificates”) or (ii) uncertificated Common Shares (the “Uncertificated Shares”). The parties agree that 100% of all fees, costs and expenses of the Paying Agent shall be borne by Parent.
(b) At or least ten Business Days prior to the Closing, Parent shall appoint a United States bank send, or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of cause the Paying Agent consistent with to send, to each holder of record of Common Shares a Letter of Transmittal, to be completed and delivered by each such Equityholder, and instructions for use to effect the terms exchange of this Agreement. such Equityholder’s Common Shares, for the payment of the consideration payable or deliverable pursuant to Section 2.03 in respect of each Common Share represented thereby, as well as any dividends or distributions to be paid pursuant to Section 2.06(e), without any interest thereon.
(c) At or prior to the Effective Time, Parent shall deposit (deliver or cause to be deposited) with delivered to the Paying Agent, for the account and benefit of the former holders Equityholders, the aggregate Per Share Consideration (including (i) evidence of Company shares in book-entry form representing the shares of Parent Common Stock, Stock constituting the aggregate Per Share Equity Consideration and (ii) an amount in cash by wire transfer of cash sufficient immediately available funds constituting the aggregate Per Share Cash Consideration) to pay be paid to the Merger Consideration payable Equityholders in respect of Certificates and Uncertificated Shares in accordance with Section 2.03 and the Allocation Schedule (as updated pursuant to this Article III Section 2.07(a)) (such cash shall be referred to in this Agreement as the “Consideration Exchange Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration .
(including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds d) Upon (i) surrender to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
of one or more Certificates, together with a properly completed Letter of Transmittal or (bii) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause receipt by the Paying Agent to mail to each stockholder of a properly completed Letter of Transmittal and such other evidence of transfer as the Paying Agent may reasonably request in the case of a book-entry transfer of Uncertificated Shares, an Equityholder whose shares were Common Shares have been converted into the right to receive Merger Consideration the consideration to be paid pursuant to Section 3.1: 2.03 or Section 2.04 shall be entitled to promptly, but in no event more than three Business Days after receipt by the Paying Agent of item described in clause (i) or (ii) above (but in no event prior to the Effective Time), receive in exchange therefor, without interest, the applicable Per Share Consideration payable for each such Common Share. Notwithstanding the foregoing, an Equityholder who has delivered to the Paying Agent at least three Business Days prior to the Closing Date either (x) one or more Certificates, together with a letter properly completed Letter of transmittal, in customary form, that shall specify that delivery Transmittal or (y) a properly completed Letter of Transmittal and such Certificates or other evidence of transfer as the Paying Agent may reasonably request of a book-entry transfer of such Book Entry Shares Uncertificated Shares, shall be deemed to have occurredpaid by the Paying Agent, and risk of loss and title to on the Certificates or Book Entry SharesClosing Date, without interest, the applicable Per Share Consideration payable for each such Common Share, as applicable, represented by such Certificate(s) or for each such Uncertificated Share. Until so surrendered or transferred, as the case may be, each Certificate or Uncertificated Share (other than Dissenting Shares and Disregarded Shares) shall pass, represent after the Effective Time for all purposes only the right to receive the consideration to be paid pursuant to Section 2.03 hereto and such Certificate(s) and/or Uncertificated Shares shall be canceled and cease to exist. Each Equityholder’s entitlement to receive the Per Share Consideration shall be conditioned upon proper such Equityholder’s execution and delivery of the Certificates a properly completed Letter of Transmittal.
(e) No dividends or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares other distributions declared with respect to Parent Common Stock shall be paid to the Paying Agent and (ii) instructions for use holder of any unsurrendered Certificate or Uncertificated Share, as applicable, until the holder thereof shall surrender such Certificate or Uncertificated Share, as applicable, in effecting accordance with this Article 2. After the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agentor Uncertificated Share, in each case together with such letter of transmittalas applicable, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructionsthis Article 2, the record holder of such Book Entry Share or Certificate thereof shall be entitled to receive in exchange thereforany such dividends or other distributions, subject without any interest thereon, which theretofore had become payable with respect to the whole shares of Parent Common Stock which the Common Shares represented by such Certificate or Uncertificated Share have been converted into the right to receive.
(f) If any required withholding portion of Taxes, the Merger Consideration consideration to be paid pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration Section 2.03 hereto is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange shall payment shall, prior to the delivery of such consideration, pay to the Paying Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicablepayable.
(cg) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after After the Effective Time, there shall be no transfers on the share stock transfer books of the Company shall be closed and there shall be no further registration of the shares transfers of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Interim Surviving Corporation or the Paying Agent for any reasonAgent, they shall be cancelled canceled and exchanged for the Merger Consideration consideration to be paid pursuant to Section 2.03 hereto in accordance with this Agreement, including the procedures set forth in this Article III, except as otherwise provided by Law2.
(eh) Prior to the surrender of any applicable Certificate or transfer of any applicable Uncertificated Share by an Equityholder, no portion of the consideration to be paid pursuant to Section 2.03 hereto shall be paid to such Equityholder in respect of such Certificate or Uncertificated Share.
(i) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year holders of Common Shares for six months after the Effective Time shall, shall be paid to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no considerationParent. Any Company stockholder owning Certificates or Book Entry former holders of Common Shares who has have not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares 2 shall thereafter look only to Parent for payment of their claim for Merger the applicable Per Share Consideration and any unpaid dividends and distributions on the Parent Common Stock deliverable in respect thereof.
(f) of each former Common Share that such Equityholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, neither none of Parent, Merger Sub, the Company, the Interim Surviving Corporation, the Paying Agent nor or any party hereto other Person shall be liable to any Person in respect of cash from the Consideration Fund Equityholder for any amount properly delivered to a public official Governmental Authority pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofApplicable Laws.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
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Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an exchange agent reasonably acceptable to the Company (or cause the “Exchange Agent”) to be deposited) with act as the Paying Agent, agent for the account and benefit purpose of exchanging for the former holders Merger Consideration: (i) the Certificates or (ii) book-entry shares which immediately prior to the Effective Time represented the shares of Company Common StockStock (the “Book-Entry Shares”). On and after the Effective Time, an amount of cash Parent shall deposit, or cause the Surviving Entity to deposit, with the Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to this Article III in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (such cash shall be referred to in this Agreement as the “Consideration Payment Fund”)) in amounts and at the times necessary for such payments. In If for any reason (including losses) the event the Consideration Payment Fund shall be insufficient is inadequate to pay the Merger Consideration (including with respect amounts to Company Common Stock held by stockholders who did not vote in favor which holders of the Merger but who did not exercise, or who shares shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock be entitled under the DGCLSection 3.01(b), Parent shall promptly deliver, take all steps necessary to enable or cause the Surviving Entity promptly to be delivered, deposit in trust additional funds to cash with the Paying Exchange Agent in an amount that is equal to the deficiency required sufficient to make such payments.
(b) all payments required under Section 3.01(b), and Parent and the Surviving Entity shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Entity shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration. Promptly after the Effective Time (and but, in any event event, within five (5) Business Days after the Effective Timethereafter), Parent shall send, or shall cause the Paying Exchange Agent to mail send, to each stockholder whose record holder of shares were converted into of Company Common Stock immediately prior to the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time, a letter of transmittal, transmittal and instructions in customary form, that form (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of shares of Company Common Stock that have been converted into the surrender right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Certificates Company Common Stock represented by a Certificate or transfer Book-Entry Share upon (i) surrender to the Exchange Agent of the Book Entry Shares in exchange for payment of the Merger Considerationa Certificate, the form together with a duly completed and substance of which validly executed letter of transmittal and instructions shall such other documents as may reasonably be as reasonably agreed to requested by the Company and Parent and prepared prior to the Closing. Upon Exchange Agent, or (ii) receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of Book-Entry Shares. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such Certificate or Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of a Book any Certificate or Book-Entry Share or surrender Share. Upon payment of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred each Certificate or Certificate Certificates so surrendered shall forthwith immediately be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or will otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange shall payment will pay to the Paying Exchange Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to on the Effective Timestock transfer books of the Surviving Entity. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonEntity, they shall be cancelled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders one Common Stock twelve (112) year months after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Article III with respect Section 3.02 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent (subject to abandoned property, escheat or other similar Laws) for payment of their claim for the Merger Consideration (without interest) upon due surrender of such holder’s Certificates or Book-Entry Shares, in respect thereofaccordance with this Article III.
(f) Notwithstanding Any portion of the foregoingMerger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, neither upon demand.
(g) None of Parent, Merger Sub, the Paying Company, the Surviving Entity or the Exchange Agent nor any party hereto shall be liable to any Person in respect of any cash or distributions from the Consideration Payment Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Book-Entry Share shall not have been surrendered or transferred, respectively, as of a date which is immediately prior to the date on which such time as any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable LawAuthority, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent Parent, free and clear of all claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States Citibank, N.A. in New York, New York or such other bank or trust company that may be designated by Parent and is reasonably satisfactory to the Company (such consent not to be unreasonably withheld, conditioned or other independent financial institution in the United States delayed) to act as agent (the “ “Paying Agent”) that is reasonably acceptable to receive the funds to which shareholders of the Company will become entitled pursuant to actSection 2.02(a), among other thingsSection 2.04 (in the case of Section 2.04, as paying agent for when ascertained) and Section 2.05 (collectively, the “Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company Consideration”) and Parent shall will enter into a Paying Agent paying agent agreement with the Paying Agent, which agreement shall set forth in form and substance reasonably acceptable to the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this AgreementCompany. At or prior to the Effective TimeTime or in the case of payments pursuant to Section 2.04, when ascertained, Parent shall deposit (deposit, or cause to be deposited) , with the Paying Agent, for the account and benefit of the former holders of Company Common StockShares, cash in an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be being hereinafter referred to in this Agreement as the “Consideration Payment Fund”). In The Payment Fund shall, pending its disbursement to the event holders of Company Shares, be invested by the Consideration Paying Agent as directed by Parent or, after the Effective Time, the Surviving Company in (i) short-term direct obligations of the United States of America, (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) short-term commercial paper rated the highest quality by either Xxxxx’x Investors Service, Inc. or Standard and Poor’s Ratings Services, or (iv) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks reasonably acceptable to the Company; provided that no such investment or losses shall affect the amounts payable to such holders of Company Shares and Parent shall promptly replace or cause to be replaced any funds deposited with the Paying Agent that are lost through any investment so as to ensure that the Payment Fund shall be insufficient is at all times maintained at a level sufficient for the Paying Agent to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exerciseConsideration. Earnings from investments, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds subject to the Paying Agent in an amount that is equal immediately preceding proviso, shall be paid to and shall be the deficiency required to make such paymentssole and exclusive property of Parent and the Surviving Company. Except as contemplated by Section 2.03(d) hereof, the Payment Fund shall not be used for any other purpose.
(b) Promptly As promptly as practicable after the Effective Time (and in any event within five (5) Business Days after in the Effective Timecase of record holders and three (3) Business Days in the case of The Depository Trust Company on behalf of beneficial holders holding through brokers, nominees, custodians or through a third party), Parent the Surviving Company shall cause the Paying Agent to mail mail, and The Depository Trust Company to deliver, to each stockholder whose shares were converted into Person who was, at the right Effective Time, a registered holder of Company Shares entitled to receive the Per Share Merger Consideration pursuant to Section 3.12.02: (i) a letter of transmittal, transmittal (which shall be in customary formform for a company incorporated in the Cayman Islands reasonably acceptable to Parent and the Company, that and shall specify that the manner in which the delivery of such Certificates or transfer the Payment Fund to registered holders of such Book Entry Company Shares shall be deemed to have occurred, effected and risk of loss contain such other provisions as Parent and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Company may reasonably agree); and (ii) instructions for use in effecting the surrender of any issued share certificates representing Company Shares (the Certificates “Share Certificates”) (or transfer affidavits and indemnities of loss in lieu of the Book Entry Shares Share Certificates as provided in Section 2.06) and/or such other documents as may be required in exchange for payment the Per Share Merger Consideration. Upon surrender of, if applicable, a Share Certificate (or affidavit and indemnity of loss in lieu of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be Share Certificate as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent provided in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with Section 2.06) and/or such other documents as may be required pursuant to such instructionsinstructions to the Paying Agent in accordance with the terms of such letter of transmittal, duly executed in accordance with the instructions thereto, each registered holder of Company Shares represented by such Book Entry Share or Certificate and each registered holder of Company Shares which are not represented by a Share Certificate (the “Uncertificated Shares”) shall be entitled to receive in exchange therefortherefor a check, subject in the amount equal to (y) the number of Company Shares represented by such Share Certificate (or affidavit and indemnity of loss in lieu of the Share Certificate as provided in Section 2.06) or the number of Uncertificated Shares multiplied by (z) the Per Share Merger Consideration, and the Share Certificate so surrendered shall forthwith be marked as cancelled. No interest shall be paid or will accrue on any required withholding amount payable in respect of Taxes, the Merger Consideration Company Shares pursuant to the provisions of this Article III2. In the event of a transfer of ownership of Company Shares that is not registered in the register of members of the Company, a check for any cash to be exchanged upon due surrender of the Share Certificate may be issued to such transferee if the Share Certificates, if any, which immediately prior to the Effective Time represented such Company Shares are presented to the Paying Agent, accompanied by all documents reasonably required to evidence and the Book Entry Share so transferred effect such transfer and to evidence that any applicable share transfer taxes have been paid or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. are not applicable.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Share Certificate or the transferred or Certificate surrendered in exchange therefor Uncertificated Share is registered, it shall be a condition of to such exchange payment that (i) either such Share Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Share transferred Certificate or Certificate surrendered, Uncertificated Share or shall establish to the reasonable satisfaction of the Paying Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At any time following the date that is nine months after the Closing Date, the Surviving Company will be entitled to require the Paying Agent to deliver to it any funds in the Payment Fund that had been made available to the Paying Agent and after not disbursed to holders of Company Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and thereafter such holders who have not complied with this Article 2 and received the Per Share Merger Consideration therefor shall thereafter look only to the Surviving Company for the cash to which they are entitled pursuant to Section 2.02(a), Section 2.04 and Section 2.05 and, subject to applicable abandoned property, escheat and other similar Laws, receive in consideration therefor the aggregate Per Share Merger Consideration that may be payable upon compliance by that holder of the procedures set forth in Section 2.03(b) relating to delivery by such holder of evidence of such Company Shares, without interest or dividends thereon.
(e) After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Share Certificates, Uncertificated Shares are presented to the Surviving Corporation Company or the Paying Agent for any reasonAgent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof2.
(f) Notwithstanding The Per Share Merger Consideration paid upon the foregoingdelivery of a Share Certificate (if any) in accordance with the terms of this Agreement will be deemed to have been paid in full satisfaction of all rights pertaining to the Company Shares formerly represented by such Share Certificate.
(g) To the fullest extent permitted by Applicable Law, neither none of Parent, Merger Subsidiary, the Company, the Surviving Company, or the Paying Agent nor any party hereto shall will be liable to any Person shareholders of the Company in respect of any cash from the Consideration Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any portion of the Payment Fund remaining unclaimed by shareholders of the Company as of a date that is immediately prior to the date on which any Merger Consideration in respect thereof such time as such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority will, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gh) If any Certificate Remittances for the Per Share Merger Consideration shall have been lostnot be sent to Company shareholders who are untraceable unless and until, stolen or destroyedexcept as provided below, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, they notify the Paying Agent shall issue of their current contact details prior to the Effective Time. A holder of Company Shares will be deemed to be untraceable if (i) it had no registered address in exchange the register of members (or branch register) maintained by the Company, or (ii) on the last two consecutive occasions on which a dividend has been paid by the Company a cheque payable to such holder either (A) has been sent to such holder and has been returned undelivered or has not been cashed or (B) has not been sent to such holder because on an earlier occasion a cheque for a dividend so payable has been returned undelivered, and in any such lostcase no valid claim in respect thereof has been communicated in writing to the Company, stolen or destroyed Certificate (iii) notice of the Company Shareholder Meeting convened to vote on the Merger Consideration has been sent to which such Person is entitled holder and has been returned undelivered. Monies due to Dissenting Shareholders and shareholders of the Company who are untraceable shall be returned to the Surviving Company on demand and held in a non-interest bearing bank account for the benefit of Dissenting Shareholders and shareholders of the Company who are untraceable. Monies unclaimed after a period of seven years from the date of the notice of the Company Shareholder Meeting shall be forfeited and shall revert to the Surviving Company. Dissenting Shareholders and shareholders of the Company who are untraceable and who subsequently request payment of any monies otherwise payable in respect of such Certificate pursuant the Merger within applicable time limits or limitation periods will be advised to this Article IIIcontact the Surviving Company.
(i) Parent, Merger Subsidiary and the Company agree that the Per Share Merger Consideration represents the fair value of the Company Shares for the purposes of Section 238(8) of the Cayman Companies Law.
Appears in 1 contract
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the agent for the purpose of exchanging for the Merger Consideration for: (i) the Certificates, or (ii) book-entry shares which immediately prior to the Effective Time represented the shares of Company Common Stock (the “Book-Entry Shares”). On and after the Effective Time, Parent shall deposit (or cause to be deposited) deposited with the Paying Exchange Agent, for the account and benefit of the former holders of shares of Company Common Stock, an amount for exchange in accordance with this Article II, through the Exchange Agent, subject to Section 2.02(b), the full number of shares of Parent Common Stock issuable pursuant to Section 2.01 in exchange for outstanding shares of Company Common Stock. On and after the Effective Time, Parent shall deposit, or cause the Surviving Corporation to deposit in trust, with the Exchange Agent, sufficient funds to pay the cash portion of the Merger Consideration that is payable in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares and any dividends or other distributions payable on such shares of Parent Common Stock pursuant to Section 2.02(c) (such shares of Parent Common Stock and cash provided to the Exchange Agent, together with any dividends or other distributions with respect thereto, the “Payment Fund”) in amounts and at the times necessary for such payments. For the purposes of the initial deposit, Parent shall assume that there will not be any fractional shares of Parent Common Stock. Parent shall make available to the Exchange Agent, for addition to the Payment Fund, from time to time as needed, cash sufficient to pay cash in lieu of fractional shares in accordance with Section 2.05. Parent shall cause the Merger Consideration payable Exchange Agent to deliver the Parent Common Stock and cash contemplated to be issued pursuant to this Article III Section 2.01 or Section 2.05 out of the Payment Fund. If for any reason (such cash shall be referred to in this Agreement as including losses) the “Consideration Fund”). In the event the Consideration Payment Fund shall be insufficient is inadequate to pay the Merger Consideration (including with respect amounts to Company Common Stock held by stockholders who did not vote in favor which holders of the Merger but who did not exercise, or who shares shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock be entitled under the DGCLSection 2.01(b), Parent shall promptly deliver, take all steps necessary to enable or cause the Surviving Corporation promptly to be delivered, deposit in trust additional funds to cash with the Paying Exchange Agent in an amount that is equal to the deficiency required sufficient to make such payments.
all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses (b) other than wire transfer expenses), including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Common Stock at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent and Exchange Agent) for use in such exchange.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive (i) the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share, (ii) instructions for use any dividends or distributions payable pursuant to Section 2.02(c) and (iii) cash in effecting lieu of any fractional shares payable pursuant to Section 2.05 upon (x) surrender to the surrender Exchange Agent of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Considerationa Certificate, the form together with a duly completed and substance of which validly executed letter of transmittal and instructions shall such other documents as may reasonably be as reasonably agreed to requested by the Company and Parent and prepared prior to the Closing. Upon Exchange Agent, or (y) receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of Book-Entry Shares. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 2.03 and Section 2.05, each such Certificate or Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration payable or issuable in respect thereof, any dividends or distributions to be paid pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.05. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of a Book any Certificate or Book-Entry Share Share. Upon payment or surrender issuance of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IIIII, and the Book Entry Share so transferred each Certificate or Certificate Certificates so surrendered shall forthwith immediately be cancelled. .
(c) No interest will dividends or other distributions with respect to Parent Common Stock with a record date after the Effective Time shall be paid to holders the holder of Book any Certificate formerly representing Company Common Stock, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.05, until the surrender of such Certificate in accordance with this Article II. Subject to applicable Law, following surrender or transfer of any such Certificate or Book-Entry Shares Share, there shall be paid to the holder of the shares of Parent Common Stock issued in exchange therefor, without interest, (i) at the time of such surrender or Certificates in connection with, or accrued ontransfer, the Merger Consideration. amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.05 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to shares of Parent Common Stock.
(d) If any portion of the Merger Consideration is to be paid or issued to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment or issuance that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange payment or issuance shall pay to the Paying Exchange Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration or issuance to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicablepayable.
(ce) The cash All Merger Consideration paid or issued upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the Consideration Fund terms hereof shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part have been paid or issued in full satisfaction of all rights pertaining to the Consideration Fund.
shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares (d) At other than the right to receive any dividends or distributions with respect to Parent Common Stock as contemplated by Section 2.02(c)), and from and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to on the Effective Timestock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by LawII.
(ef) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders Common Stock one (1) year after the Effective Time shallshall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration and any dividends or distributions with respect to Parent Common Stock as contemplated by Section 2.02(c). Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Common Stock for any portion of the Merger Consideration or the cash to be paid in accordance with this Article II (including any dividends or distributions with respect to Parent Common Stock as contemplated by Section 2.02(c)) paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any portion of the Merger Consideration or the cash to be paid in accordance with this Article II remaining unclaimed by holders of shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making Any portion of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration made available to which such Person is entitled the Exchange Agent in respect of such Certificate pursuant any Dissenting Shares shall be returned to this Article IIIParent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint U.S. Bank National Association (or cause the “Paying Agent”) to act as paying agent in connection with the consideration to be deposited) with paid to the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable Stockholders pursuant to this Article III a paying agent agreement among Parent, Representative and Paying Agent in reasonable form and substance (such cash shall be referred to in this Agreement as the “Consideration FundPaying Agent Agreement”). In the event the Consideration Fund The Paying Agent’s fees and expenses shall be insufficient borne by Parent.
(b) At least three (3) Business Days prior to pay the Closing Date, Company shall deliver to Parent its good faith estimate of the Closing Merger Consideration (the “Estimated Closing Merger Consideration”), including with respect to Company Common Stock held by stockholders who did not vote in favor reasonable support for its calculation of the Estimated Closing Merger but who did not exerciseConsideration. The calculation of the Estimated Closing Merger Consideration shall be prepared in accordance with GAAP applied on a basis consistent with Company’s past practices used in preparing the Financial Statements.
(c) No later than three (3) Business Days following the date hereof, or who Company shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds a Letter of Transmittal in a form reasonably acceptable to Parent and Company (collectively, the “Letters of Transmittal”) to the Paying Agent in an amount Preferred Stockholders. In the event that is equal to at any time the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery sum of the Certificates (Preferred Stockholder Allocated Amounts exceeds the Aggregate Liquidation Preference Amount, then concurrently with or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt distribution to Preferred Stockholders resulting in such event, Surviving Company shall deliver, or cause to be delivered, a Letter of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation Transmittal to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding Company Common Stock that has not executed a Letter of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to Transmittal along with a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent letter explaining that such Tax threshold has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundexceeded.
(d) At Company shall deliver to Parent, at least three (3) Business Days prior to the Closing Date, a distribution schedule (the “Distribution Schedule”), setting forth Company’s calculation of how the Aggregate Merger Consideration shall be allocated among the Stockholders, in addition to an electronic copy thereof in Microsoft Excel format. Parent shall be able to rely on, and after shall have no liability to any party to this Agreement or to any Stockholder for any payment reflected on, the Distribution Schedule. The Distribution Schedule shall include:
(i) the name, address (as listed in the corporate record books of Company) and, the extent provided by such Stockholder in a Letter of Transmittal, the social security number or tax identification number of each Stockholder;
(ii) the Aggregate Liquidation Preference Amount;
(iii) each Preferred Stockholder’s Proportionate Share, and each Common Stockholder’s Proportionate Share;
(iv) the Company Board’s good faith determination, with the written consent of holders of at least two-thirds of the then outstanding shares of the Senior Preferred, of the value of each component of the Aggregate Merger Consideration as of the Effective Time, there shall be no transfers on ;
(v) the share transfer books Preferred Per Share Merger Consideration for each series of Company Preferred Stock and the Common Per Share Merger Consideration for the Company Common Stock;
(vi) the allocation of the Aggregate Merger Consideration among the Stockholders, determined in accordance with the Company Charter as in effect as of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after including the Effective Time, Certificates or Book Entry allocation of any Closing Cash Consideration and the number of Parent Shares are presented issuable to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration each Stockholder pursuant to this Article IIISection 1.4 and Section 1.5(e);
(vii) a schedule of MIP Payments to be made at the Closing, except as otherwise provided well as a schedule setting forth the allocation of any Escrow Distributions, Reserve Distributions, and Earnout Payments payable to Participants as MIP Payments;
(viii) the number of shares (separated by Lawclass and series) of Company Stock; and
(ix) certificate prefix(es) and certificate number(s) for Company Stock.
(e) Any portion At the Closing, Parent shall deliver or pay, or shall cause the Surviving Company to deliver or pay, in cash by wire transfer of immediately available funds, the balance of amounts of the Consideration Fund (including Indebtedness identified on the proceeds of any investments thereof) that remains unclaimed by “Indebtedness Pay-Off Schedule” and outstanding Stockholder Transaction Expenses identified on the former Company stockholders one (1) year after the Effective Time shall“Stockholder Transaction Expenses Schedule”, to the extent permitted by applicable Law, be each delivered to Parent by Company at least three (3) Business Days prior to the Closing Date, as follows:
(i) all amounts necessary to fully discharge the then-outstanding balances of the Indebtedness identified on the Indebtedness Pay-Off Schedule shall be paid on behalf of Company to the applicable creditors’ accounts set forth in the Pay-Off Letters or as otherwise advised by such creditors in writing; and
(ii) all amounts necessary to fully discharge the Surviving Corporation for no consideration. Any then-outstanding balances of Stockholder Transaction Expenses identified on the Stockholder Transaction Expenses Schedule shall be paid on behalf of Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to the accounts designated by the Persons owed such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofamounts as set forth on the Stockholder Transaction Expenses Schedule.
(f) Notwithstanding Each Accredited Stockholder’s Proportionate Share of the foregoing, neither the Paying Agent nor any party hereto Closing Merger Consideration shall be liable to any Person paid in respect a number of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior Parent Shares (rounded up to the date on which any nearest share) equal to such Accredited Stockholder’s Proportionate Share of the Closing Merger Consideration divided by the Parent Trading Price at Signing (the “Parent Share Consideration”); provided that in respect thereof would otherwise escheat the event that the aggregate of the Accredited Stockholders’ Proportionate Shares of the Closing Merger Consideration, plus the Escrow Shares, plus the amount of any MIP Payments paid in Parent Shares at the Closing, exceeds $34,000,000, then the amount of such excess shall be paid in cash; provided that the aggregate of the non-Accredited Stockholders’ Proportionate Share of the Closing Merger Consideration shall be equal to or become less than $3,400,000. Each non-Accredited Stockholder’s Proportionate Share of the property of any Governmental Entity pursuant to applicable Law, any such Closing Merger Consideration shall be paid in respect of such Certificate or Book Entry Shares shall, cash (together with any cash consideration payable to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate Accredited Stockholders pursuant to this Article IIIclause, the “Closing Cash Consideration”). “Parent Trading Price at Signing” means $15.99.
Appears in 1 contract
Samples: Merger Agreement (AtriCure, Inc.)
Surrender and Payment. (a) At or prior Prior to the Closing, Effective Time Parent shall appoint select a United States bank or trust company or other independent nationally recognized financial institution in the United States (the “ Paying Agent”) that is identity and terms of appointment of which shall be reasonably acceptable to the Company Company) to act, among other things, act as paying agent Paying Agent in the Merger (the "Paying Agent") for the Merger and to deliver payment of the Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to former stockholders of the CompanyEffective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to the Effective Time, in each case, other than the Cancelled Shares, restricted shares pursuant to a Company Restricted Stock Award and except for any Dissenting Shares. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit (or cause to be depositeddeposited (i) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, cash in an amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant required to be paid by the Paying Agent in accordance with this Article III Agreement (such cash shall be referred to in this Agreement as the “"Exchange Fund"), and (ii) with the Company, cash in an amount sufficient such that the Company has sufficient cash on hand to pay the aggregate Option Consideration and RS/RSU Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the "Compensatory Award Fund”"). In the event the Consideration Exchange Fund or the Compensatory Award Fund shall be insufficient to pay make the payments in connection with the Merger Consideration (including with respect to Company Common Stock held contemplated by stockholders who did not vote in favor of the Merger but who did not exerciseSection 3.01 or Section 3.05, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)respectively, Parent shall promptly deliver, deposit or cause to be delivered, deposited additional funds to cash with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required pay the Merger Consideration, the Option Consideration or the RS/RSU Consideration, as applicable. The Paying Agent shall, pursuant to make such paymentsirrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 3.01 out of the Exchange Fund. The Surviving Corporation or an Acquired Company, as applicable, shall pay through payroll (subject to withholding and deductions required by Applicable Law) the Option Consideration and RS/RSU Consideration contemplated to be paid pursuant to Section 3.05 out of the Compensatory Award Fund. The Exchange Fund and the Compensatory Award Fund shall not be used for any other purpose.
(b) Promptly As soon as reasonably practicable after the Effective Time (and in any event within five not later than the second (52nd) Business Days after Day following the Effective Time), Parent shall will cause the Paying Agent to mail send to each stockholder whose holder of record of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented shares were converted into of Company Common Stock (other than the right to receive Merger Consideration pursuant to Section 3.1: Cancelled Shares and except for any Dissenting Shares) (i) a letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares Shares, as applicable, to the Paying Agent Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, and (ii) instructions for use in effecting the surrender of the Certificates (or transfer effective affidavits of the Book loss in lieu thereof) or Book-Entry Shares Shares, as applicable, in exchange for payment of the Merger Consideration, the Consideration in such form as Parent and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to may reasonably agree.
(c) Upon the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Shares, as applicable, for cancellation to the Paying Agent, in each case together with such a letter of transmittal, transmittal duly completed and validly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Certificate or Book-Entry Share or Certificate shall be entitled to receive in exchange therefor and Parent shall cause the Paying Agent to pay in exchange therefor, subject to as promptly as practicable (but in any required withholding of Taxesevent within two (2) Business Days), the Merger Consideration pursuant to the provisions of this Article III, and the Book Certificates or Book-Entry Share so transferred or Certificate so Shares surrendered shall forthwith be cancelledcanceled. No interest will be paid to holders In the event of Book Entry Shares or Certificates a transfer of ownership of Company Common Stock that is not registered in connection withthe transfer records of the Company, or accrued on, payment of the Merger Consideration. If any appropriate amount of Merger Consideration is to may be paid made to a Person other than the stockholder Person in whose name the Book Certificate or Book-Entry Share transferred or Certificate so surrendered in exchange therefor is registered, it if such Certificate shall be a condition of properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent) or such exchange that Book-Entry Share shall be properly transferred, and the Person requesting such exchange payment shall pay pay, or cause to the Paying Agent be paid, any transfer or other Taxes required by reason of the payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Parent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and No interest shall be paid as Parent directs. No investment or accrue on any cash payable upon surrender of the Consideration Fund shall relieve Parent, the Surviving Corporation any Certificate or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration FundBook-Entry Share.
(d) At and after Prior to the Effective Time, there Parent and the Company shall be no transfers cooperate to establish procedures with the Paying Agent and the Depository Trust Company ("DTC") to ensure that (i) if the Closing occurs at or prior to 2:00 p.m. Eastern time on the share transfer books Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of the Company of the shares of Company Common Stock that were outstanding held of record by DTC or such nominee immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for Time multiplied by the Merger Consideration pursuant to this Article III(such amount, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation"DTC Payment"), and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(gii) If any Certificate shall have been lost, stolen or destroyed, upon if the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and Closing occurs after 2:00 p.m. Eastern time on the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedClosing Date, the Paying Agent shall issue will transmit to DTC or its nominee on the first (1st) Business Day after the Closing Date an amount in exchange for such lost, stolen or destroyed Certificate cash in immediately available funds equal to the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIDTC Payment.
Appears in 1 contract
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank authorize one or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is more Persons reasonably acceptable to the Company to act, among other things, act as paying agent for Exchange Agent hereunder the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying "Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to ." Promptly after the Effective Time, Parent shall deposit (or cause deliver to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of Exchange Agent sufficient cash sufficient to pay satisfy the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”)Consideration. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after Time, the Surviving Corporation shall cause to be mailed to each record holder, as of the Effective Time, of certificates representing outstanding shares of Company Common Stock ("Company Certificates") or shares of Company Common Stock represented by book-entry ("Company Book-Entry Shares") (other than Dissenting Shares), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Company Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Company Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Exchange Agent or, in the case of Company Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) and (ii) instructions for use in effecting the surrender of the Company Certificates or transfer or, in the case of Company Book-Entry Shares, the Book Entry Shares in exchange surrender of such shares for payment of the Merger ConsiderationConsideration therefor. After the Effective Time, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior upon surrender in accordance with this Section ------- 3.4(a), to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Company Certificate or Company ------ Book-Entry Share or surrender of a Certificate for cancellation to the Paying AgentShares, in each case together with such letter of transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the Exchange Agent shall promptly deliver to the holder of such Book Company Certificate or Company Book-Entry Share or Certificate shall be entitled to receive Shares in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration to be received by the holder thereof pursuant to the provisions of this Article III, and the Book Entry Share so transferred Agreement. The Exchange Agent shall accept such Company Certificates or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Company Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of Company or its transfer agent of shares of Company Common Stock and, if Company Certificates in connection withor Company Book-Entry Shares are presented to Company for transfer, or accrued on, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be paid to issued in a Person name other than that in which the stockholder in whose name the Book Entry Share transferred or Company Certificate surrendered in for exchange therefor is registered, it shall be a condition of such exchange that the Person Company Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer, including compliance with all laws and that the person requesting such exchange shall pay to the Paying Agent Company or its transfer agent any transfer or other Taxes taxes required by reason of payment the issuance of the Merger Consideration to in a Person name other than that of the stockholder owning registered holder of the Book Entry Share transferred or Company Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund . Until surrendered as contemplated by this Section 3.4(a), each Company Certificate and each Company Book-Entry --------------- Share shall be invested by the Paying Agent as directed by Parent; provided, however, that deemed at any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 3.1. ------------
(b) The Merger Consideration paid upon the surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the amount terms of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will this Article 3 shall be deemed to be part have been issued (and paid) in full satisfaction of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of all rights pertaining to the shares of Company Common Stock that were outstanding immediately prior to so exchanged.
(c) At any time following the Effective Time. If, date which is nine months after the Effective Time, Parent shall be entitled to require the Exchange Agent to deliver to it any or funds (including any interest received with respect thereto) which have been made available to the Exchange Agent and which have not been disbursed to holders of Company Certificates or Book Company Book-Entry Shares are presented and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the applicable Merger Consideration payable upon due surrender of their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration. None of Parent, Surviving Corporation, any subsidiary or Affiliate of Parent or Surviving Corporation or the Paying Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect former holder of cash from the Consideration Fund delivered to a public official Company Common Stock for cash, pursuant to any applicable abandoned property, escheat or other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereoflaws.
(gd) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate Company Certificate to be lost, stolen or destroyeddestroyed and, if requested by the Surviving Corporation, the Paying posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Company Certificate, the Exchange Agent shall issue will pay, in exchange for such lost, stolen or destroyed Certificate Company Certificate, the Merger Consideration to which such Person is entitled be paid in respect of the shares of Company Common Stock represented by such Certificate pursuant to this Article IIICompany Certificate.
Appears in 1 contract
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, --------------------- Parent shall deposit appoint a bank or trust company (or cause the "Exchange Agent") for the purpose of exchanging certificates representing Company Shares for the Merger Consideration. Parent will make available to be deposited) with the Paying Exchange Agent, for the account and benefit of the former holders of Company Common Stockas needed, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III be paid in respect of the Company Shares (such cash shall be referred to in this Agreement as the “Consideration "Exchange Fund”"). In the event the Consideration Fund shall be insufficient to pay For purposes of determining the Merger Consideration (including with respect to be made available, Parent shall assume that no holder of Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights Shares will perfect his right to appraisal of such his Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Shares. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Parent will send, or will cause the Exchange Agent to send, to each holder of Company Shares at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) Time a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry certificates representing Company Shares to the Paying Exchange Agent). The Exchange Agent and shall, pursuant to irrevocable instructions, make the payments provided in this Section 2.3. The Exchange Fund shall not be used for any other purpose, except as provided in this Agreement.
(iib) instructions for use in effecting the surrender Each holder of the Certificates or transfer of the Book Entry Company Shares in exchange for payment of that have been converted into a right to receive the Merger Consideration, upon surrender to the form and substance Exchange Agent of which a certificate or certificates representing such Company Shares, together with a properly completed letter of transmittal covering such Company Shares and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructionsreasonably requested, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant payable in respect of such Company Shares. Until so surrendered, each such certificate shall, after the Effective Time, represent for all purposes, only the right to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person person other than the stockholder in whose name registered holder of the Book Entry Share transferred Company Shares represented by the certificate or Certificate certificates surrendered in exchange therefor is registeredtherefor, it shall be a condition of to such exchange payment that the Person certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person person other than the stockholder owning the Book Entry Share transferred registered holder of such Company Shares or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; providedpayable. For purposes of this Agreement, however"person" means an individual, that a corporation, a partnership, a limited liability company, an association, a trust or any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days other entity or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parentorganization, the Surviving Corporation including a government or the Paying Agent from promptly making the payments required by this Article III, and following political subdivision or any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates agency or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect instrumentality thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Samples: Merger Agreement (Platinum Technology International Inc)
Surrender and Payment. (a) At or prior Prior to the ClosingEffective Time, Parent shall appoint a United States bank or and trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent (the “Paying Agent”) for the purpose of exchanging for the Merger and to deliver Consideration (i) certificates representing Shares (the Merger Consideration to former stockholders of “Certificates”) or (ii)uncertificated Shares (the Company“Uncertificated Shares”). The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Agreement and otherwise reasonably acceptable to the Company and Parent. Promptly after the Effective TimeTime on the Closing Date, Parent shall deposit (or cause make available to be deposited) with the Paying Agent, for as needed, the account and benefit Merger Consideration to be paid in respect of the former holders of Company Common StockCertificates and the Uncertificated Shares, in the aggregate, in an amount of cash sufficient to pay the Merger Consideration payable pursuant required to be paid by the Paying Agent in accordance with this Article III Agreement (such cash shall be referred to in this Agreement as cash, the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Acceptance Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect on account of any Merger Consideration returned to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights Parent pursuant to appraisal of such Company Common Stock under the DGCLSection 3.03(g)), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) . Promptly after the Effective Time (and in any event within five (5) two Business Days after the Effective Time), Parent shall send, or shall cause the Paying Agent to mail send, to each stockholder whose shares were converted into holder of Shares at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time a letter of transmittal, transmittal and instructions in customary form, that form (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent and (iiAgent) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Considerationsuch exchange, the form and substance of which such letter of transmittal and instructions shall be as reasonably agreed to by Parent and the Company and Parent and prepared prior to the Closing. Upon .
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of a book-entry transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of TaxesUncertificated Shares, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry payable for each Share so transferred represented by such Certificate or Certificate for each such Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall forthwith be cancelled. No interest will be paid represent after the Effective Time for all purposes only the right to holders of Book Entry Shares or Certificates in connection with, or accrued on, receive the Merger Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent and Parent that such Tax has been paid or is not applicablepayable.
(cd) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) 30 days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article IIIArticle 3, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(de) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by LawArticle 3.
(ef) Any portion of the Merger Consideration Fund made available to the Paying Agent pursuant to Section 3.03(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former Company stockholders holders of Shares one (1) year after the Effective Time shallTime, to the extent permitted by applicable Applicable Law, shall be delivered returned to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares Parent, upon demand, and any such holder who has not theretofore complied exchanged such Shares for the Merger Consideration in accordance with this Article III with respect Section 3.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration in respect thereof.
(f) of such Shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent Parent nor any party hereto of its Affiliates shall be liable to any Person in respect holder of cash from the Consideration Fund delivered Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate Any amounts remaining unclaimed by holders of Shares two years after the Effective Time (or Book Entry Share shall not have been surrendered or transferred, respectively, such earlier date immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, Authority) shall become to the extent permitted by applicable Law, become Applicable Law the property of Parent or the Surviving Corporation, Corporation free and clear of any stockholder claims or interest of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory Merger Consideration made available to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIISection 3.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Tyson Foods Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an agent reasonably acceptable to the Company (or cause to be depositedthe “Exchange Agent”) with the Paying Agent, for the account and benefit purpose of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay exchanging for the Merger Consideration (including with respect i) certificates representing shares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Prior to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)Effective Time, Parent shall promptly deliver, or cause to be delivered, additional funds make available to the Paying Exchange Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive aggregate Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration is to be paid to a Person other than the stockholder in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment respect of the Merger Consideration to a Person other than shares of Company Stock represented by Certificates and the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall Uncertificated Shares. Such funds may be invested by the Paying Exchange Agent as directed by Parent; provided, however, provided that (i) no such investment or losses thereon shall affect the Merger Consideration payable hereunder and following any losses Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the shareholders of the Company in the amount of any such losses and (ii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than thirty (30) 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States. Earnings on the Consideration Fund States of America or in excess of the amounts payable to the Companycommercial paper obligations rated A-1 or P-1 or better by Standard & Poor’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required Xxxxx’x Investors Service, Inc., respectively. Any interest or income produced by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds investments will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented payable to the Surviving Corporation or the Paying Agent Parent, as Parent directs. The parties acknowledge and agree that such funds are owned by Parent for any reasonTax purposes, they shall be cancelled and exchanged for the Merger Consideration until paid pursuant to this Article IIIthe terms hereof and, except accordingly, any income earned on such amounts will be treated as otherwise provided by Law.
(e) Any portion income of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year Parent. Promptly after the Effective Time shall(but not later than two Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the extent permitted by applicable LawEffective Time notice advising such holder of the effectiveness of the Merger, which notice shall include appropriate transmittal instructions (including, if applicable, a letter of transmittal), which shall specify that the delivery shall be delivered to Parent or effected, and risk of loss and title shall pass, only upon proper delivery of the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry transfer of the Uncertificated Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration Exchange Agent, for use in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofexchange.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent the holders of TBC Shares shall appoint IMR General to act as the Payment Agent for the purpose of exchanging certificates representing TBC Shares that are not Dissenting Shares ("CERTIFICATES") for the Merger Consideration. At the Effective Time, the Buyer shall deposit (or cause to be deposited) deposited with the Paying Agent, for Payment Agent funds in the account and benefit amount of the former holders of Company Common Stock, an amount of cash sufficient to pay Purchase Price (the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”"FUNDS"). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying The Payment Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Agent to mail will send to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) holder of TBC Shares a letter of transmittal, transmittal (or other appropriate notification and transmittal document) for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer to the Payment Agent). The Payment Agent shall instruct TBC to cancel all such Certificates and shall promptly deliver them to the Surviving Corporation at the Closing against delivery of the Book Entry Funds.
(b) Each holder of TBC Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of that have been converted into the Merger Consideration, upon surrender to the form and substance Payment Agent of which a Certificate or Certificates representing such shares, together with a properly completed letter of transmittal and instructions shall or other appropriate document covering such shares, will be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange thereforentitled, subject to any required withholding of TaxesSection 2.5(g) below, to receive the Merger Consideration pursuant payable in respect of such TBC Shares, without interest. Until so surrendered, each such Certificate shall after the Effective Time represent for all purposes only the right to receive such Merger Consideration from the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. Payment Agent as provided herein.
(c) If any portion of the Merger Consideration is to be paid to a Person other than to the stockholder in whose name registered holder of the Book Entry Share transferred TBC Shares represented by the Certificate or Certificate Certificates surrendered in exchange therefor is registeredtherefor, it shall be a condition of to such exchange payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Paying Agent Surviving Corporation any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration or transfers of shares of TBC Common Stock on the share stock transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeTBC. If, after the Effective Time, Certificates or Book Entry Shares certificates representing shares of TBC Common Stock are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Merger Consideration pursuant to Consideration, without interest thereon, in accordance with the procedures set forth in this Article III, except as otherwise provided by LawII.
(e) Any portion If, on or after the date of this Agreement and prior to the Effective Time, the outstanding shares of TBC Common Stock shall have been changed into a different number of shares or a different class by reason of any reclassification, recapitalization, split-up, combination, exchange or shares or readjustment, or a stock dividend or other extraordinary dividend or distribution thereon shall be declared with a record date within said period, the amount of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofshall be correspondingly adjusted.
(f) Notwithstanding The right of any TBC Stockholder to receive the foregoingMerger Consideration or, neither in the Paying Agent nor any party hereto case of the Purchased Interests, other consideration, shall be liable subject to and reduced by any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofrequired tax withholding obligation.
(g) If any Certificate IMR General, in its capacity as Payment Agent, shall have been lostthe authority, stolen without limitation, to determine the amount of the Sellers' Transactional Expenses, shall determine, review, negotiate and pay all of such expenses and other amounts determined, in its sole discretion, to be necessary or destroyeddesirable to disburse in connection with the Transactions, upon to purchase equity (I.E., stock and option) interests on behalf of the making TBC Stockholders, to pursue or compromise indemnification liability by or on behalf of an affidavit one or more of that fact the TBC Stockholders and to withhold reserves sufficient for, in its sole discretion, payment of all other Liabilities related to the Transactions, including, without limitation, the Purchase Price Adjustment requiring a payment to the Buyer. The Payment Agent shall for all purposes be deemed the sole authorized agent of each TBC Stockholder with respect to calculation and distributions of pro-rata amounts delivered to it by the Buyer under this Article II, and each such TBC Stockholder, in approving this Agreement, consents and approves such agency and all actions taken by the Payment Agent pursuant to it. Any action or failure to act so taken (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agentor not taken) by the Person claiming such certificate to Payment Agent shall constitute a decision of each TBC Stockholder, and shall be lostfinal, stolen or destroyedbinding and conclusive upon each TBC Stockholder. The Buyer, the Paying Transitory Subsidiary and, after the Effective Time, the Surviving Corporation may rely upon any decision, act, consent or instruction of the Payment Agent shall issue as being the decision, act, consent or instruction of each and all of the TBC Stockholders. The Buyer, the Transitory Subsidiary and, after the Effective Time, the Surviving Corporation are relieved from any Liability to any Person for any acts done by them in exchange for accordance with any such lostdecision, stolen act, consent or destroyed Certificate instruction. IMR agrees to indemnify and hold harmless the Merger Consideration Buyer, its Affiliates and, after the Effective Time, the Surviving Corporation from and against any Liabilities any of them may incur as a result of or connected with the actions or failures to which such Person is entitled in respect of such Certificate pursuant to this Article IIIact by the Payment Agent or its Representatives or agents.
Appears in 1 contract
Samples: Merger Agreement (Bekins Co /New/)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an agent (or cause the "EXCHANGE AGENT") reasonably acceptable to be deposited) with the Paying Agent, Company for the account and benefit purpose of exchanging certificates representing Shares (the former holders of Company Common Stock, an amount of cash sufficient to pay "CERTIFICATES") for the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”)Consideration. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and Time, Parent will cause to be deposited with the Exchange Agent the Merger Consideration to be paid in any event within five (5) Business Days respect of the Shares. Promptly after the Effective Time), Parent shall will send, or will cause the Paying Exchange Agent to mail send, to each stockholder whose shares were converted into holder of record of Shares at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of Shares that have been converted into the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of right to receive the Merger ConsiderationConsideration will be entitled to receive, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior upon surrender to the Closing. Upon receipt of an “agent’s message” by the Paying Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such all other documents as the Exchange Agent may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxesreasonably require, the Merger Consideration payable for each Share represented by such Certificate. Until so surrendered, each such Certificate shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration. No interest shall be paid or will accrue on the Merger Consideration payable pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. 2.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share transferred or surrendered Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Parent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after the Effective Time, there shall be no transfers on the share stock transfer books of the Company will be closed and there shall be no further registration of the shares transfers of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Merger Consideration Fund made available to the Exchange Agent pursuant to Section 2.03(a) (including the proceeds of and any investments thereofinterest or other income earned thereon) that remains unclaimed by the former Company stockholders holders of Shares one (1) year after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged Shares for the Merger Consideration in accordance with this Article III with respect Section 2.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration in respect thereof.
(f) of such Shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate Any amounts remaining unclaimed by holders of Shares three years after the Effective Time (or Book Entry Share shall not have been surrendered or transferred, respectively, such earlier date immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallgovernmental authority) shall become, to the extent permitted by applicable Lawlaw, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If any Certificate shall have been lost, stolen or destroyed, upon the making Any portion of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration made available to which such Person is entitled in respect of such Certificate the Exchange Agent pursuant to this Article IIISection 2.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Rj Reynolds Tobacco Holdings Inc)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint a bank or trust company to act as disbursing agent (the “Disbursing Agent”) for the payment of Merger Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.6(b), Parent shall deposit (or cause to be deposited) deposited with the Paying Agent, for Disbursing Agent cash in an aggregate amount necessary to make the account and benefit of the former payments pursuant to Section 3.6(b) to holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III Shares (such cash shall be amounts being hereinafter referred to in this Agreement as the “Consideration Exchange Fund”). In For purposes of determining the event the Consideration Fund amount to be so deposited, Merger Subsidiary shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor assume that no stockholder of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights Company will perfect any right to appraisal of his, her or its Shares. The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such Company Common Stock investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (iii) commercial paper rated the highest quality by either Xxxxx’x Investors Services, Inc. or Standard & Poor’s Corporation; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.6(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under the DGCL), Section 3.6(b) shall be promptly paid to Parent. Parent shall promptly deliver, or cause to be delivered, additional funds replenish the Exchange Fund to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsextent of any investment losses. The Exchange Fund shall not be used for any other purpose.
(b) Promptly after Merger Subsidiary shall instruct the Effective Time (and in any event within five (5) Business Days Disbursing Agent to mail promptly after the Effective Time, but in no event later than the fifth (5th) Business Day thereafter, to each Person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the “Certificates”), Parent shall cause the Paying Agent to mail to each stockholder and whose shares Shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) 3.6(b), a form of letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Disbursing Agent) and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentDisbursing Agent for cancellation, in each case together with such letter of transmittal, transmittal duly executed and completed in accordance with the instructions thereto, and with such other documents as may be reasonably required pursuant to such instructionsby the Disbursing Agent, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefortherefor the Merger Consideration payable in respect of that Certificate, subject to less any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or such Certificate so surrendered shall forthwith be cancelledcanceled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender of the Certificates.
(c) If any Merger Consideration payment is to be paid made to a Person other than the stockholder Person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall payment pay to the Paying Agent any transfer or other Taxes required by reason of the payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Entry Share transferred Certificate surrendered or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax has been paid or is not applicable.
(cd) The cash Until surrendered in accordance with the Consideration Fund shall be invested provisions of this Section 3.7, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Shares held by the Paying Agent as directed by Parent; providedCompany and Dissenting Shares) shall represent for all purposes, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States from and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at after the Effective Time in Time, only the amount of such losses right to receive the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundapplicable Merger Consideration.
(de) At and after the Effective Time, there shall be no registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that Shares 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 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. The Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they such Certificates shall be cancelled and exchanged for represent the right to receive the Merger Consideration pursuant to as provided in this Article III. At the close of business on the day of the Effective Time, except as otherwise provided by Lawthe stock ledger of the Company shall be closed.
(ef) Any portion of the Merger Consideration Fund made available to the Disbursing Agent to pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand by Parent. At any time more than twelve (including the proceeds of any investments thereof12) that remains unclaimed by the former Company stockholders one (1) year months after the Effective Time shallTime, the Disbursing Agent shall upon demand of Parent deliver to it any funds which had been made available to the extent permitted Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by applicable Lawthe Disbursing Agent in respect of all such funds). Thereafter, be delivered holders of Certificates shall look only to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with (subject to the terms of this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoingAgreement, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or and other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior Laws) as general creditors thereof with respect to the date on which any Merger Consideration in respect thereof that may be payable, without interest, upon due surrender of the Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Lawgovernmental unit or agency, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder Person previously entitled thereto. Notwithstanding the foregoing, none of such Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for any Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled delivered in respect of such Certificate of Shares to a public official pursuant to this Article IIIany abandoned property, escheat or other similar Law.
Appears in 1 contract
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent Alcatel shall deposit appoint The Bank of New York or an agent mutually agreed by Alcatel and Lucent (the "Exchange Agent"), pursuant to an agreement in form and substance reasonably acceptable to Alcatel and Lucent for the purpose of exchanging certificates representing Shares (the "Certificates") for the Merger Consideration and any dividends payable pursuant to Section 1.03(f). At the Effective Time, Alcatel shall: (i) deposit, or cause to be deposited) , with the Paying AgentSociete Generale, as custodian and agent of The Bank of New York, as depositary for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exerciseADSs, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under any successor depositary thereto (the DGCL"Depository"), Parent shall promptly delivera number of Alcatel Ordinary Shares equal to the aggregate number of ADSs to be issued as Merger Consideration; and (ii) deposit, or cause to be delivereddeposited, additional funds to with the Paying Exchange Agent the receipts representing such aggregate number of ADSs, in an amount that is equal to the deficiency required to make such payments.
each of cases (bi) Promptly after the Effective Time and (and in any event within five (5) Business Days after the Effective Timeii), Parent shall cause for the Paying Agent to mail to each stockholder whose shares were benefit of the holders of Shares which are converted into the right to receive Merger Consideration ADSs pursuant to Section 3.1: (i1.02(a)(iii) of this Agreement. To the extent required, Alcatel shall cause the Exchange Agent to requisition from the Depository, from time to time, such number of ADSs as are issuable in respect of Shares to be properly delivered to the Exchange Agent. Promptly after the Effective Time, Alcatel will send, or will cause the Exchange Agent to send, to each holder of record at the Effective Time of Shares a letter of transmittal, transmittal for use in customary form, that such exchange (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates to the Exchange Agent) in such form as Lucent and Alcatel may reasonably agree, for use in effecting delivery of Shares to the Exchange Agent. Following the Effective Time, Alcatel agrees to make available to the Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay any dividends and other distributions pursuant to Section 1.03(f). At and after the Effective Time, Alcatel will take all actions necessary to cause the delivery of Alcatel Ordinary Shares or ADSs, as applicable upon the exercise or conversion at or after the Effective Time of any option referred to in Section 1.04, any Lucent Warrant, any Lucent Stock-Based Account or Lucent Convertible Debt.
(b) Each holder of Shares that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate representing Shares (or effective affidavits of loss in lieu thereofthereof in accordance with the procedures set forth in Section 1.08) or transfer of the Book non-certificated Shares represented by book-entry ("Book-Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger ConsiderationShares"), the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall will be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration in respect of such Shares (including cash payable in lieu of fractional shares pursuant to the provisions of this Article IIISection 1.06), and any dividends payable pursuant to Section 1.03(f). Until a Certificate is so surrendered, such Certificate shall, after the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No Effective Time, only represent the right to receive such Merger Consideration and any dividends payable pursuant to Section 1.03(f) (in each case without interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. thereon).
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to Alcatel or the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration Consideration, and any dividends payable pursuant to Section 1.03(f), in accordance with the provisions of this Article III, except as otherwise provided by LawI. In no event shall any interest be payable with respect to the Merger Consideration or any such dividends.
(e) Any portion of the Consideration Fund (including Merger Consideration, or dividends payable pursuant to Section 1.03(f), made available to the proceeds of any investments thereofExchange Agent pursuant to Section 1.03(a) that remains unclaimed by the former Company stockholders one holders of Shares twelve (112) year months after the Effective Time shallshall be returned to Alcatel, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged his Shares for Merger Consideration in accordance with this Article III with respect Section prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent Alcatel for payment of their claim for the Merger Consideration in respect thereof.
(f) of his Shares. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Alcatel shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate Any amounts remaining unclaimed by holders of Shares three years after the Effective Time (or Book Entry Share shall not have been surrendered or transferred, respectively, such earlier date immediately prior to the date on which any Merger Consideration in respect thereof such time as such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares governmental entity) shall, to the extent permitted by applicable Lawlaw, become the property of Parent Alcatel free and clear of any Liens (as defined in Section 3.04), claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(gf) If any Certificate shall have been lost, stolen No dividends or destroyed, upon other distributions with respect to ADSs (or the making of an affidavit of that fact (which affidavit underlying Alcatel Ordinary Shares) issued in the Merger shall be paid to the holder of any unsurrendered Certificates or Book-Entry Shares until such Certificates or Book-Entry Shares are surrendered as provided in a form reasonably satisfactory this Section 1.03. Subject to Parent and applicable law, following such surrender, there shall be paid, without interest, to the Paying Agent) by record holder of the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue ADSs issued in exchange for such lostCertificates or Book-Entry Shares (i) at the time of such surrender, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled all dividends and other distributions payable in respect of such Certificate ADSs with a record date after the Effective Time and a payment date on or prior to the date of such surrender and which were not previously paid, and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such ADSs with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of ADSs, all ADSs to be issued pursuant to this Article IIIthe Merger (excluding ADSs (and underlying Alcatel Ordinary Shares) issuable upon exercise of options which are issued pursuant to Section 1.04 unless such options are actually exercised prior to the Effective Time, or upon exercise of Lucent Warrants, Lucent Stock-Based Awards or Lucent Convertible Debt) shall be entitled to dividends pursuant to the immediately preceding sentence as if such ADSs were issued and outstanding as of the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Alcatel)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint a bank or trust company to act as disbursing agent (the "Disbursing Agent") for the payment of Merger Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.06(b), Parent shall deposit (or cause to be deposited) deposited with the Paying AgentDisbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 3.06(b) to holders of Shares (such amounts being hereinafter referred to as the "Exchange Fund"). The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the account payment of principal and benefit interest, or (iii) commercial paper rated the highest quality by either Xxxxx'x Investors Services, Inc. or Standard & Poor's Corporation; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.06(b). Any interest and other income resulting from such investment shall become a part of the former holders Exchange Fund, and any amounts in excess of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration amounts payable pursuant to this Article III (such cash under Section 3.06(b) shall be referred promptly paid to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such paymentsParent.
(b) Promptly after Merger Subsidiary shall instruct the Effective Time (and in any event within five (5) Business Days Disbursing Agent to mail promptly after the Effective Time, but in no event later than the fifth Business Day thereafter, to each person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the "Certificates"), Parent shall cause the Paying Agent to mail to each stockholder and whose shares Shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) 3.06(b), a form of letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent Disbursing Agent) and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentDisbursing Agent for cancellation, in each case together with such letter of transmittal, transmittal duly executed and completed in accordance with the instructions thereto, and with such other documents as may be reasonably required pursuant to such instructionsby the Disbursing Agent, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefortherefor the Merger Consideration payable in respect of that Certificate, subject to less any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or such Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, on the Merger Consideration. cash payable upon the surrender of the Certificates.
(c) If any Merger Consideration payment is to be paid made to a Person person other than the stockholder person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall payment pay to the Paying Agent any transfer or other Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the stockholder owning registered holder of the Book Entry Share transferred Certificate surrendered or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax has been paid or is not applicable.
(cd) The cash Until surrendered in accordance with the Consideration Fund shall be invested provisions of this Section 3.07, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Shares held by the Paying Agent as directed by Parent; providedCompany and Dissenting Shares) shall represent for all purposes, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States from and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at after the Effective Time in Time, only the amount of such losses right to receive the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundapplicable Merger Consideration.
(de) At and after the Effective Time, there shall be no registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that Shares 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 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. The Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they such Certificates shall be cancelled and exchanged for represent the right to receive the Merger Consideration pursuant to as provided in this Article III, except as otherwise provided by Law. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(ef) Any portion of the Merger Consideration Fund (including made available to the proceeds of Disbursing Agent to pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand. At any investments thereof) that remains unclaimed by the former Company stockholders one (1) year time more than twelve months after the Effective Time shallTime, the Disbursing Agent shall upon demand of Parent deliver to it any funds which had been made available to the extent permitted Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by applicable Lawthe Disbursing Agent in respect of all such funds). Thereafter, be delivered holders of Certificates shall look only to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with (subject to the terms of this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoingAgreement, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or and other similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior Laws) as general creditors thereof with respect to the date on which any Merger Consideration in respect thereof that may be payable, without interest, upon due surrender of the Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Lawgovernmental unit or agency, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, free and clear of all claims or interest of any stockholder person previously entitled thereto. Notwithstanding the foregoing, none of such Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for any Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled delivered in respect of such Certificate of Shares to a public official pursuant to this Article IIIany abandoned property, escheat or other similar Law.
Appears in 1 contract
Samples: Merger Agreement (Wiser Oil Co)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the agent for the purpose of exchanging the Merger Consideration for: (i) the Certificates, or (ii) book-entry shares which immediately prior to the Effective Time represented the shares of Company Capital Stock (the “Book-Entry Shares”). On and after the Effective Time, Parent shall deposit, or cause the Surviving Corporation to be deposited) deposit, with the Paying Exchange Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to this Article III in respect of all of the shares of Company Capital Stock represented by the Certificates and the Book-Entry Shares (such cash shall be referred to in this Agreement as the “Consideration Payment Fund”)) in amounts and at the times necessary for such payments. In If for any reason (including losses) the event the Consideration Payment Fund shall be insufficient is inadequate to pay the Merger Consideration (including with respect amounts to Company Common Stock held by stockholders who did not vote in favor which holders of the Merger but who did not exercise, or who shares shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock be entitled under the DGCLSection 3.01(b), Parent shall promptly deliver, take all steps necessary to enable or cause the Surviving Corporation promptly to be delivered, deposit in trust additional funds to cash with the Paying Exchange Agent in an amount that is equal to the deficiency required sufficient to make such payments.
(b) all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Capital Stock for the Merger Consideration. Promptly after the Effective Time (and in any event within five (5) Business Days after Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Capital Stock at the Effective Time), Parent shall cause the Paying Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Book-Entry Shares to the Paying Agent and (iiExchange Agent) instructions for use in effecting such exchange.
(b) Each holder of shares of Company Capital Stock that have been converted into the surrender right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Certificates Company Capital Stock represented by a Certificate or transfer Book-Entry Share upon (i) surrender to the Exchange Agent of the Book Entry Shares in exchange for payment of the Merger Considerationa Certificate, the form together with a duly completed and substance of which validly executed letter of transmittal and instructions shall such other documents as may reasonably be as reasonably agreed to requested by the Company and Parent and prepared prior to the Closing. Upon Exchange Agent, or (ii) receipt of an “agent’s message” by the Paying Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in connection with the case of Book-Entry Shares. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such Certificate or Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of a Book any Certificate or Book-Entry Share or surrender Share. Upon payment of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred each Certificate or Certificate Certificates so surrendered shall forthwith immediately be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor Share, as applicable, is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such exchange payment shall pay to the Paying Exchange Agent any transfer or other Taxes Tax required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrenderedShare, as applicable, or shall establish to the reasonable satisfaction of the Paying Exchange Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Capital Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers of shares of Company Capital Stock on the share stock transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeSurviving Corporation. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year holders of Shares six months after the Effective Time shallshall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Capital Stock for the Merger Consideration in accordance with this Section 3.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Capital Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Company Capital Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, be delivered to the property of Parent free and clear of any claims or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment interest of their claim for Merger Consideration in respect thereofany Person previously entitled thereto.
(f) Notwithstanding Any portion of the foregoing, neither Merger Consideration made available to the Paying Exchange Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered any Dissenting Shares shall be returned to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyedParent, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIdemand.
Appears in 1 contract
Samples: Merger Agreement (Computer Software Innovations, Inc.)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall select a nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as Paying Agent (the “Paying Agent”) for the payment of the Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to the Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to the Effective Time, in each case, other than the Cancelled Shares, any Dissenting Shares and the Gato Shares. At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior to the Effective Time, Parent shall deposit (or cause to be depositeddeposited (i) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, cash in an amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant (other than the Employee RS Award Consideration) required to be paid by the Paying Agent in accordance with this Article III Agreement (such cash shall be referred to in this Agreement as the “Exchange Fund”), and (ii) with the Company, cash in an amount sufficient to pay the aggregate Option Consideration and Employee RS Award Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Compensatory Award Fund”). In the event the Consideration Exchange Fund or the Compensatory Award Fund shall be insufficient to pay make the payments in connection with the Merger Consideration (including with respect to Company Common Stock held contemplated by stockholders who did not vote in favor of the Merger but who did not exerciseSection 3.01 or Section 3.05, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL)respectively, Parent shall promptly deliver, deposit or cause to be delivered, deposited additional funds to with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required to make such paymentsthe applicable payment. The Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration (other than the Employee RS Award Consideration) contemplated to be issued pursuant to Section 3.01 out of the Exchange Fund. Parent shall cause the Surviving Corporation to pay the Option Consideration and Employee RS Award Consideration contemplated to be paid pursuant to Section 3.05 out of the Compensatory Award Fund. The Exchange Fund and the Compensatory Award Fund shall not be used for any other purpose.
(b) Promptly As soon as reasonably practicable after the Effective Time (and in any event within five not later than the second (52nd) Business Days after Day following the Effective Time), Parent shall cause will direct the Paying Agent to mail send to each stockholder whose holder of record of shares were converted into of Company Common Stock as of immediately prior to the right to receive Merger Consideration pursuant to Section 3.1: Effective Time (other than the Cancelled Shares and the Underlying Employee Restricted Shares and except for any Dissenting Shares and the Gato Shares)
(i) a letter of transmittal, in customary form, that transmittal (which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or customary and effective affidavits of loss in lieu thereofthereof which is reasonably acceptable to Parent) or transfer of the Book Book-Entry Shares Shares, as applicable, to the Paying Agent Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, and (ii) instructions for use in effecting the surrender of the Certificates (or transfer customary and effective affidavits of the Book loss in lieu thereof which is reasonably acceptable to Parent) or Book-Entry Shares Shares, as applicable, in exchange for payment of the Merger Consideration, the Consideration in such form as Parent and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to may reasonably agree.
(c) Upon the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate (or delivery of a customary affidavit of loss in lieu thereof which is reasonably acceptable to Parent) or Book-Entry Shares, as applicable, for cancellation to the Paying Agent, in each case together with such a letter of transmittal, transmittal duly completed and validly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructionsinstructions or by the Paying Agent, the holder of the shares of Company Common Stock represented by such Book Certificate or such Book-Entry Share or Certificate as of immediately prior to the Effective Time (other than the Underlying Employee Restricted Shares) shall be entitled to receive in exchange therefor and Parent shall cause the Paying Agent to pay in exchange therefor, subject to as promptly as practicable (but in any required withholding of Taxesevent within three (3) Business Days), the Merger Consideration pursuant to the provisions of this Article Article III, and the Book Certificates or Book-Entry Share so transferred or Certificate so Shares surrendered shall forthwith be cancelledcanceled. No interest will be paid to holders In the event of Book Entry Shares or Certificates a transfer of ownership of Company Common Stock that is not registered in connection withthe transfer records of the Company, or accrued on, payment of the Merger Consideration. If any appropriate amount of Merger Consideration is to may be paid made to a Person other than the stockholder Person in whose name the Book Certificate or Book-Entry Share transferred or Certificate so surrendered in exchange therefor is registered, it subject to Section 3.02(e), if such Certificate shall be a condition of such exchange that the Person requesting such exchange shall pay to the Paying Agent any properly endorsed or otherwise be in proper form for transfer or other Taxes (and accompanied by all documents reasonably required by reason of payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any Agent) or such investments Book-Entry Share shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United Statesproperly transferred. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and No interest shall be paid as Parent directs. No investment or accrue on any cash payable upon surrender of the Consideration Fund shall relieve Parent, the Surviving Corporation any Certificate or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration FundBook-Entry Share.
(d) At and after Prior to the Effective Time, there Parent and the Company shall reasonably cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 2:00 p.m. Eastern time (or such other time as may be no transfers mutually agreed in writing by Parent and the Company) on the share transfer books Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of the Company of the shares of Company Common Stock that were outstanding held of record by DTC or such nominee immediately prior to the Effective Time. If, after Time (other than the Effective Time, Certificates or Book Entry Cancelled Shares are presented to and the Surviving Corporation or the Paying Agent Underlying Employee Restricted Shares and except for any reason, they shall be cancelled Dissenting Shares and exchanged for the Gato Shares) multiplied by the Merger Consideration pursuant to this Article III(such amount, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof) that remains unclaimed by the former Company stockholders one (1) year after the Effective Time shall, to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation“DTC Payment”), and any stockholder of (ii) if the Closing occurs after such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon time on the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedClosing Date, the Paying Agent shall issue will transmit to DTC or its nominee on the first (1st) Business Day after the Closing Date an amount in exchange for such lost, stolen or destroyed Certificate cash in immediately available funds equal to the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIDTC Payment.
Appears in 1 contract
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an agent reasonably acceptable to the Company (or cause to be depositedthe “Paying Agent”) and enter into a paying agent agreement with the Paying Agent, Agent reasonably acceptable to the Company for the account and benefit purpose of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay exchanging for the Merger Consideration (including with respect to i) certificates representing shares of Company Common Stock held by stockholders who did not vote in favor (the “Certificates”) or (ii) uncertificated shares of Company Stock (the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL“Uncertificated Shares”), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) . Promptly after the Effective Time (and but in any no event within later than five (5) Business Days after the Effective Time), Parent shall send, or shall cause the Paying Agent to mail send, to each stockholder whose holder of record of shares were converted into of Company Stock at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time other than Excluded Shares a letter of transmittal, transmittal (in customary form, a form that was reasonably acceptable to the Company prior to the Effective Time) and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Uncertificated Shares to the Paying Agent) for use in such exchange.
(b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent and of a Certificate, together with a properly completed letter of transmittal, or (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an a customary “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in connection with the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration in respect of the Company Stock represented by a Book Entry Share Certificate or Uncertificated Share. Upon such surrender of a Certificate Certificates for cancellation to the Paying Agent, in the Certificates so surrendered will forthwith also be cancelled. Until so surrendered or transferred, as the case may be, each case together with such letter of transmittalCertificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration. Immediately after the Effective Time, duly executed and completed in accordance Parent shall deposit, or cause to be deposited, with the instructions theretoPaying Agent, for the benefit of the holders of Company Stock, cash in an amount sufficient to pay the aggregate Merger Consideration (such cash being hereinafter referred to as the “Payment Fund”). The Payment Fund shall, pending its disbursement to the holders of Company Stock, be invested by the Paying Agent as directed by Pxxxxx in (i) short-term direct obligations of the United States of America, (ii) short-term obligations for which the full faith and with credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) short-term commercial paper rated the highest quality by either Mxxxx’x Investors Service, Inc. or Standard and Poor’s Ratings Services, or (iv) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks reasonably acceptable to the Company; provided that no such other documents as may be required pursuant investment or losses shall affect the amounts payable to such instructions, holders of Company Stock and Parent shall promptly replace or cause to be replaced any funds deposited with the holder of such Book Entry Share or Certificate shall be entitled Paying Agent that are lost through any investment so as to receive in exchange thereforensure that the Payment Fund is at all times maintained at a level sufficient for the Paying Agent to pay the aggregate Merger Consideration. Earnings from investments, subject to any required withholding of Taxesthe immediately preceding proviso, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders and shall be the sole and exclusive property of Book Entry Shares Parent or Certificates in connection withthe Surviving Corporation, or accrued onas directed by Pxxxxx. Except as contemplated by Section 2.3(e) hereof, the Merger Consideration. Payment Fund shall not be used for any other purpose.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes or fees required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At From and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeStock. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reasonAgent, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law2.
(e) Any portion of the Consideration Payment Fund (including the proceeds of any investments thereof) that remains unclaimed by the former holders of shares of Company stockholders one Stock twelve (112) year months after the Effective Time shallshall be returned to Parent, upon demand, and any such former holder of shares of Company Stock that have been converted into the right to receive the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares Merger Consideration who has not theretofore complied exchanged shares of Company Stock for the Merger Consideration in accordance with this Article III with respect Section 2.3 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent or the Surviving Corporation, as directed by Pxxxxx, for payment of their claim for the Merger Consideration Consideration, in respect thereof.
(f) of such shares of Company Stock without any interest thereon. Notwithstanding the foregoing, neither Parent and the Paying Agent nor any party hereto Surviving Corporation shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Stock for any amounts properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of shares of Company Stock immediately prior to the date on which any Merger Consideration in respect thereof such time when such amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallAuthority shall become, to the extent permitted by applicable Applicable Law, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Samples: Merger Agreement (TravelCenters of America Inc. /MD/)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall appoint an agent reasonably satisfactory to the Company (the "PAYING AGENT") for the purpose of exchanging certificates representing shares of Company Stock (the "CERTIFICATES") for the Merger Consideration. Parent will cause the Surviving Corporation to deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay Agent the Merger Consideration payable pursuant to this Article III (such cash shall be referred to paid in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal shares of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Stock. Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall will cause the Paying Agent to mail send, to each stockholder whose holder of shares were converted into of Company Stock at the right to receive Merger Consideration pursuant to Section 3.1: (i) Effective Time a letter of transmittal, in customary form, that transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates to the Paying Agent) for use in such exchange.
(or affidavits b) Each holder of loss in lieu thereof) or transfer shares of Company Stock that have been converted into the Book Entry Shares right to receive the Merger Consideration will be entitled to receive, upon surrender to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentCertificate, in each case together with such a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant in respect of the Company Stock represented by such Certificate, without interest. Until so surrendered, each such Certificate shall represent after the Effective Time for all purposes the right to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the receive such Merger Consideration. .
(c) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry Share transferred registered holder of such Certificate or Certificate surrendered, or shall establish to the reasonable satisfaction of the Surviving Corporation and the Paying Agent that such Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fundpayable.
(d) At and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeStock. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonCorporation, they shall be cancelled canceled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by LawArticle.
(e) Any portion of the Merger Consideration Fund (including deposited with the proceeds of any investments thereofPaying Agent pursuant to Section 2.04(a) that remains unclaimed by the former holders of shares of Company stockholders Stock one (1) year after the Effective Time shallshall be returned to Parent, to the extent permitted by applicable Lawupon demand, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares and any such holder who has not theretofore complied exchanged the Certificates for the Merger Consideration in accordance with this Article III with respect Section prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration Consideration, in respect thereof.
(f) of such shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto Parent shall not be liable to any Person in respect holder of cash from the Consideration Fund delivered shares of Company Stock for any amounts paid to a public official pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, Any amounts remaining unclaimed by holders of shares of Company Stock immediately prior to such time when the date on which any Merger Consideration in respect thereof amounts would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shallgovernmental authority shall become, to the extent permitted by applicable Lawlaw, become the property of Parent free and clear of any claims or the Surviving Corporation, and interest of any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofPerson previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Samples: Merger Agreement (International Aircraft Investors)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement. At or prior Prior to the Effective Time, Parent shall deposit appoint an agent reasonably acceptable to the Company (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) the Certificates and (ii) the Book-Entry Shares. Promptly after the Effective Time, Parent or cause one of its Affiliates shall make available to be deposited) with the Paying Agent, for as needed, the account aggregate Closing Amount payable in respect of all the Shares converted in accordance with Section 3.02(a) and benefit of represented by the former holders of Company Common Stock, an amount of cash sufficient to pay Certificates and the Merger Consideration payable pursuant to this Article III Book-Entry Shares (such cash shall be referred to in this Agreement as cash, the “Consideration Fund”). For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration aggregate Closing Amount (including with respect on account of any Closing Amount returned to Company Common Stock held by stockholders who did not vote in favor Parent pursuant to Section 3.03(h)) or any Closing Amount becomes payable after a holder of Shares fails to perfect, waives, withdraws or otherwise loses the right to appraisal under Section 262 of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. The Consideration Fund shall not be used for any other purpose.
(b) Promptly after the Effective Time With respect to Certificates, promptly (and in any event within five not later than the third (53rd) Business Days Day) after the Effective Time), Parent shall send, or shall cause the Paying Agent to send, to each holder of record of each such Certificate (i) a notice advising such holder of the effectiveness of the Merger, (ii) a letter of transmittal in customary form specifying that delivery shall be effected, and risk of loss and title to a Certificate shall pass, only upon delivery of the Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 3.10) to the Paying Agent (a “Letter of Transmittal”) and (iii) instructions for surrendering a Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 3.10) to the Paying Agent. Upon surrender to the Paying Agent of a Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 3.10) together with a duly executed and completed Letter of Transmittal and such other documents as may reasonably be required by the Paying Agent pursuant to such instructions, Parent shall cause the Paying Agent to mail pay and deliver as promptly as practicable after the Effective Time the Closing Amount payable for each Share represented by such Certificate pursuant to Section 3.02(a). Any Certificate that has been so surrendered shall be cancelled by the Paying Agent. Until so surrendered or transferred, as the case may be, and subject to the terms of Section 3.04, each stockholder whose shares were converted into such Certificate or Book-Entry Share shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration payable in respect thereof. No interest shall be paid or shall accrue on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Shares.
(c) With respect to Book-Entry Shares, Parent shall cause the Paying Agent to pay and deliver the Closing Amount payable therefor pursuant to Section 3.1: (i) a letter of transmittal3.02(a), in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, each case promptly after the Effective Time and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares surrender thereof to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by in customary form (or such other evidence of transfer, if any, as the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to may reasonably request). The Company and Parent shall cooperate to, and Parent shall cause the Paying AgentAgent to, (i) deliver to DTC or its nominees, or to holders of Book-Entry Shares, in each case together to the extent applicable or required, any notice with such letter respect to the effectiveness of transmittalthe Merger and any instructions for surrendering Book-Entry Shares and (ii) establish procedures with the Paying Agent and DTC to ensure that the Paying Agent will transmit to DTC or its nominees as soon as practicable after the Effective Time, duly executed and completed upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures, the instructions thereto, and with Closing Amount payable for each such other documents as may be required Book-Entry Share pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject Section 3.02(a).
(d) With respect to any required withholding Certificate or Book-Entry Share, if any portion of Taxes, the Merger Consideration pursuant (including payment in the form of or with respect to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. If any Merger Consideration CVR) is to be paid to a Person other than the stockholder Person in whose name the Book surrendered Certificate or the transferred Book-Entry Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent any transfer or other Taxes required to be paid by reason the Paying Agent, Parent or their respective Affiliates as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book registered holder of such Certificate or Book-Entry Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent and Parent that such Tax has been paid or is not applicablepayable.
(ce) The Until disbursed in accordance with this Agreement, the cash in the Consideration Fund shall will be invested by the Paying Agent as directed by Parent; provided, however, provided that (i) no such investment or losses thereon shall affect the Closing Amount payable to the holders of Shares and (ii) following any such investments shall be losses or events that result in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund becoming not immediately available or that result in excess the amount of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of funds in the Consideration Fund shall relieve Parent, being insufficient to promptly pay the Surviving Corporation or portion of the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investmentaggregate Closing Amount that remains unpaid, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount holders of such losses Shares to the extent the funds in the Consideration Fund are insufficient for of such purposes, which additional funds will insufficiency. Any interest and other income resulting from such investments shall be deemed paid solely to be part of the Consideration FundParent.
(df) At From and after the Effective Time, there shall be no further registration of transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective TimeShares. If, after the Effective Time, Certificates or Book Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reasonAgent, they shall be cancelled and exchanged for the Merger Consideration pursuant to provided for, and in accordance with the procedures set forth, in this Article III, except as otherwise provided by Law3 and the CVR Agreement.
(eg) Any portion of the Consideration Fund (including the proceeds of and any investments thereofearnings, interest or other income earned thereon) that remains unclaimed by the former Company stockholders one (1) year holders of Shares six months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered returned to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares one of its Affiliates, upon demand, and any such holder who has not theretofore complied exchanged its Shares for the Closing Amount in accordance with this Article III with respect Section 3.03 prior to such Certificates or Book Entry Shares that time shall thereafter look only to Parent (subject to abandoned property, escheat or similar laws), as general creditors thereof, for payment of their claim for Merger Consideration the Closing Amount in respect thereof.
(f) of such Shares without any interest thereon. Notwithstanding the foregoing, neither the Paying Agent Parent nor any party hereto of its Affiliates shall be liable to any Person in respect holder of cash from the Consideration Fund delivered Shares for any amounts paid to a public official Governmental Authority pursuant to any applicable abandoned property, escheat or similar Lawlaws. If any Certificate or Book Book-Entry Share shall has not have been surrendered or transferred, respectively, immediately prior to the date on which any the Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable LawAuthority, any such Merger Consideration in respect of such Certificate or Book Book-Entry Shares Share shall, to the extent permitted by applicable Law, immediately prior to such time become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(h) Any portion of the Closing Amount made available to the Paying Agent pursuant to Section 3.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent or one of its Affiliates upon demand.
(i) All Merger Consideration paid upon the Surviving Corporation, and any stockholder surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificate or Book Book-Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereofShares.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Samples: Merger Agreement (Zogenix, Inc.)
Surrender and Payment. (a) At or prior to the Closing, Parent shall appoint designate a United States bank or trust company or other independent financial institution in the United States (the “ Paying Agent”) that is reasonably acceptable to the Company Company, pursuant to acta customary agreement in form and substance reasonably acceptable to the Company, among other things, to act as paying the agent for the Merger and to deliver holders of Shares in connection with the Merger Consideration (the “Exchange Agent”) to former stockholders receive in trust the funds to which holders of Shares and holders of Company Stock Options shall become entitled pursuant to Sections 1.11(c) or 1.12, as applicable. At the Effective Time, Parent or Purchaser shall deposit or cause to be deposited with the Exchange Agent, for the benefit of holders of Shares and holders of Company Stock Options the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Sections 1.11(c) or 1.12, as applicable (the “Exchange Fund”) and such funds shall not be used for any other purpose. Such funds shall be invested, in customary investments, as directed by Parent, Purchaser or the Surviving Corporation in its sole discretion pending payment thereof by the Exchange Agent to holders of Shares. Earnings from such investment of the Company. The Company Exchange Fund shall be the sole and Parent exclusive property of Purchaser or the Surviving Corporation, as applicable, and no part of such earnings shall enter into a Paying Agent agreement with accrue to the Paying Agent, which agreement shall set forth the duties, responsibilities and obligations benefit of the Paying Agent consistent with the terms holders of this Agreement. At or prior to Shares.
(b) As soon as practicable after the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying Exchange Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: record holder of one or more certificates formerly representing Shares (each, a “Certificate”) (i) a letter of transmittaltransmittal in form and substance reasonably acceptable to the Company, in customary form, that which shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurredeffected, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper actual delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Exchange Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as Parent may reasonably specify and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed Consideration pursuant to by the Company and Parent and prepared prior to the ClosingSection 1.11(c). Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying AgentExchange Agent or to such other agent or agents as may be appointed by Parent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructionsexecuted, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, therefor the Merger Consideration pursuant to the provisions of this Article IIIfor each Share formerly represented by such Certificate, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will record holder of an uncertificated Share shall be paid required to holders execute or deliver any letter of Book Entry Shares transmittal or Certificates similar document in connection with, or accrued on, order to receive the Merger ConsiderationConsideration and Parent shall cause the Exchange Agent to deliver the Merger Consideration to each such record holder promptly following the Effective Time, in each case except as explicitly provided otherwise in this Section 1.13 or in Section 1.14. If any payment of the Merger Consideration is to be paid made to a Person person other than the stockholder Person in whose name the Book Entry surrendered Certificate or any uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange payment that the Certificate so surrendered shall be properly indorsed or shall be otherwise in proper form for transfer and that the Person requesting such exchange payment shall pay to the Paying Agent have paid any transfer or and other Taxes taxes required by reason of the payment of the Merger Consideration to a Person other than the stockholder owning registered holder of the Book Entry Certificate surrendered or uncertificated Share transferred or Certificate surrendered, or shall establish have established to the reasonable satisfaction of the Paying Agent Surviving Corporation that such Tax tax either has been paid or is not applicable. Parent shall cause the Exchange Agent to pay any amounts payable to holders of Shares pursuant to Section 1.11(c), and to pay any amounts payable to holders of Company Stock Options pursuant to Section 1.12, in each case as promptly as practicable following such time as such amounts become payable in accordance with the terms hereof.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property Each of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any holder of any Certificate or Certificates or uncertificated Shares such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any other provision of applicable federal, state, local or foreign tax Law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Parent or the Paying Agent from promptly making the payments required by Surviving Corporation, such withheld amount shall be treated for all purposes of this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds Agreement as having been paid to the Paying Agent for the benefit holders of the Company’s stockholders at the Effective Time Shares in the amount respect of which such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Funddeduction and withholding was made.
(d) At and after the Effective Time, there shall be no transfers on the share transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Exchange Fund (including the proceeds of any investments thereof) that which remains unclaimed by undistributed to the former stockholders of the Company stockholders one (1) year for six months after the Effective Time shall, to the extent permitted by applicable Law, shall be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares Corporation, upon demand of the Surviving Corporation, and any such former stockholders who has have not theretofore complied with this Article III with respect Section 1.13, to such Certificates or Book Entry Shares the extent applicable, shall thereafter look only to Parent the Surviving Corporation for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding cash pursuant to Section 1.11(c). Neither Parent, the foregoing, neither the Paying Exchange Agent nor any party hereto the Surviving Corporation shall (absent manifest error) be liable to any Person former holder of Shares for any such cash held in respect of cash from the Consideration Exchange Fund which is delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share .
(e) The Merger Consideration paid in accordance with the terms hereof shall not be deemed to have been surrendered or transferred, respectively, prior paid in full satisfaction of all rights pertaining to the date Shares
(f) At the close of business on the day during which any Merger Consideration in respect thereof would otherwise escheat to or become the property Effective Time occurs, the stock transfer books of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect the Company shall be closed and no transfer of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment be made on the records of their claim for Merger Consideration in respect thereofthe Company.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate Certificate to be lost, stolen or destroyeddestroyed and, if required by Parent or the Exchange Agent, the Paying posting by such Person of a bond, in such reasonable amount as Parent or the Exchange Agent shall may direct as indemnity against any claim that may be made against them with respect to such Certificate, the Exchange Agent will issue and pay in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIConsideration.
Appears in 1 contract
Samples: Merger Agreement (Oce N V)
Surrender and Payment. (a) At or prior to As promptly as practicable after the Closingdate of this Agreement, Parent shall appoint a United States bank or trust company or other independent financial institution in Purchaser and the United States (the “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Company. The Company and Parent Equityholders’ Representative shall enter into a Paying Agent payments administration agreement with the Paying AgentPayments Administrator (the “Payments Agreement”), on terms and conditions reasonably satisfactory to Purchaser, pursuant to which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent Payments Administrator will agree to serve as payments administrator in connection with the terms transactions contemplated hereby.
(b) As promptly as practicable after the date of this Agreement. At or prior , the Company shall cause the Payments Administrator to the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional to each holder of record of Company Stock a letter of transmittal in substantially the form attached hereto as Exhibit G (the “Letter of Transmittal”), to be completed and delivered by each Equityholder to effect the exchange of such Equityholder’s Company Stock for the payment of the portion of the Merger Consideration payable or deliverable pursuant to Section 2.04 in respect of each share of Company Stock represented thereby, without any interest thereon.
(c) At the Closing, Parent, Purchaser or Merger Sub shall deliver or cause to be delivered (i) by wire transfer of immediately available funds to the Paying Agent in Payments Administrator, for the benefit of the Equityholders entitled thereto, an amount that is in cash equal to the deficiency required Aggregate Series A Liquidation Preference, the Aggregate Series B Liquidation Preference and the aggregate Per Share Closing Cash Consideration to make be paid to the Equityholders in respect of the Certificates and the Uncertificated Shares in accordance with Section 2.04 and the Allocation Schedule, as reduced by the Market Price of the aggregate Closing Stock Consideration as provided in Section 2.04(f) and (ii) to each Equityholder listed on Schedule II the number of shares of Parent Common Stock set forth opposite such paymentsEquityholder’s name on Schedule II (as modified pursuant to the terms of this Agreement).
(bd) Promptly after Upon (i) surrender to the Effective Time Payments Administrator of a certificate representing shares of Company Stock (and in any event within five (5) Business Days after the Effective Time“Certificate”), Parent shall cause together with a properly completed and duly executed Letter of Transmittal or (ii) receipt by the Paying Agent to mail to each stockholder Payments Administrator of such evidence of transfer as the Payments Administrator may reasonably require in the case of a book-entry transfer of uncertificated shares of Company Stock (“Uncertificated Shares”), an Equityholder whose shares were of Company Stock have been converted into the right to receive the applicable portion of the Merger Consideration shall be entitled (A) to promptly receive from the Payments Administrator the Per Share Series A Liquidation Preference, if any, the Per Share Series B Liquidation Preference, if any, and the Per Share Closing Cash Consideration, if any, payable for each such share of Company Stock represented by such Certificate or for each such Uncertificated Share pursuant to Section 3.1: (i) a letter of transmittal2.04, in customary form, that shall specify that delivery as reduced by the Market Price of such Certificates or transfer of Equityholder’s Closing Stock Consideration as provided in Section 2.04(f), (B) to promptly receive from the Payments Administrator such Book Entry Shares shall be deemed to have occurredEquityholder’s Closing Stock Consideration, if any, and risk (C) to receive from the Payments Administrator the remainder of loss and title to the Certificates Merger Consideration payable or Book Entry Sharesdeliverable, as applicable, shall passfor each such share in the manner and at (or promptly following) the times paid or delivered to the Payments Administrator, only upon proper delivery for the benefit of the Certificates Equityholders entitled thereto, as set forth in this Agreement and the Escrow Agreement. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share (or affidavits of loss in lieu thereofother than Dissenting Shares) or transfer of shall represent after the Book Entry Shares Effective Time for all purposes only the right to receive the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment applicable portion of the Merger Consideration, Consideration and the form and substance of which letter of transmittal and instructions Certificate or Uncertificated Share shall be as reasonably agreed canceled and cease to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration. exist.
(e) If any portion of the Merger Consideration is to be paid to a Person other than the stockholder Person in whose name the Book Entry surrendered Certificate or the transferred Uncertificated Share transferred or Certificate surrendered in exchange therefor is registered, it shall be a condition of to such exchange payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Paying Agent Purchaser any transfer or other Taxes required by reason as a result of such payment of the Merger Consideration to a Person other than the stockholder owning the Book Entry registered holder of such Certificate or Uncertificated Share transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the Paying Agent Purchaser that such Tax has been paid or is not applicablepayable.
(cf) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after After the Effective Time, there shall be no transfers on the share stock transfer books of the Company shall be closed and there shall be no further registration of the transfers of shares of Company Common Stock that were outstanding immediately prior to the Effective TimeStock. If, after the Effective Time, Certificates or Book Entry Uncertificated Shares are presented to Parent, the Purchaser, the Surviving Corporation or the Payments Administrator, they shall be canceled and exchanged for the Merger Consideration in accordance with this Agreement, including the procedures set forth in this Article 2.
(g) After the Effective Time and pending surrender and exchange of any Person’s Certificate(s) or Uncertificated Shares, a holder’s Certificate(s) or Uncertificated Shares shall be deemed for all purposes to evidence only such holder’s right to receive from the Payments Administrator the portion of the Merger Consideration into which such Company Shares shall have been converted by the Merger, and each holder of a Certificate or Uncertificated Share shall look only to the Payments Administrator for payment or delivery of the portion of the Merger Consideration payable pursuant to Section 2.04 and the other amounts payable pursuant to this Agreement, in each case, in respect of such Company Shares, and may surrender such Certificate or transfer such Uncertificated Share to the Payments Administrator and (subject to applicable abandoned property, escheat and similar Applicable Laws) receive in exchange therefor the portion of the Merger Consideration payable pursuant to Section 2.04 and the other amounts payable pursuant to this Agreement.
(h) Except as required by Applicable Law, no dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date after the Effective Time shall be paid to any Equityholder (whether surrendered or unsurrendered).
(i) All consideration paid in respect of the surrender or exchange of shares of Company Stock in accordance with the terms hereof shall be deemed to be in full satisfaction of all rights pertaining to such shares of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled canceled and exchanged submitted to the Payments Administrator for exchange as provided in this Section 2.06.
(j) Notwithstanding anything to the Merger Consideration contrary, except as expressly provided in Section 10.02(b) (but subject to the limitations set forth in Article 10), in no event shall the aggregate amount required to be paid by Parent and Purchaser pursuant to this Article III, except as otherwise provided by Law.
(e) Any portion of the Consideration Fund Agreement (including pursuant to Section 2.04, Section 2.06, Section 2.07, Section 2.08, Section 2.11 and Section 2.14) exceed (i) the proceeds of any investments thereofBase Cash Consideration, plus (ii) that remains unclaimed by the former Company stockholders one Final Adjustment Amount (1which may be a negative number) year after the Effective Time shall, plus (iii) to the extent permitted by applicable Law, be delivered to Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not theretofore complied with this Article III with respect to such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable Law, become the property of Parent or the Surviving Corporation, and any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyedpayable, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IIIEarn-Out Amounts.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Communications Sales & Leasing, Inc.)
