Surrender and Payment. (a) Clearwire has appointed the Exchange Agent for the purpose of exchanging the Merger Consideration for: (i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or (ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing Date, NewCo will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock at the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent. (b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on (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 Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stock. (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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that (i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and (ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable. (d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2. (e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 4 contracts
Samples: Transaction Agreement and Plan of Merger, Transaction Agreement and Plan of Merger (Clearwire Corp), Transaction Agreement and Plan of Merger (New Clearwire CORP)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an exchange agent (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration for:
(i) certificates representing payable in respect of the shares of Clearwire Capital Stock (Company Common Stock. As of the “Certificates”) or
(ii) uncertificated Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of shares of Clearwire Capital Company Common Stock, for exchange in accordance with this Section 2.04 through the Exchange Agent, evidence of shares in book-entry form representing the shares of Parent Common Stock (issuable pursuant to Section 2.03(i) in exchange for outstanding shares of Company Common Stock. Parent agrees to make available, directly or indirectly, to the “Uncertificated Shares”)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 2.07. Promptly after the Closing DateEffective Time, NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Common Stock represented by a Certificate at the Effective Time a letter of transmittal and instructions that will which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent for use in such exchange. All evidence of shares in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.04 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. 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 Parent; provided that no such investment or losses thereon shall affect the dividends or other distributions to which holders of Company Common Stock are entitled pursuant to Section 2.04(f) or cash in lieu of fractional interests to which holders of Company Common Stock are entitled pursuant to Section 2.07. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
(b) Each holder of shares of Clearwire Capital Company Common Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, in respect of each share of Company Common Stock represented by such Certificate or Uncertificated Share (A) the aggregate Merger Consideration that the holder has a right to receive under Section 2.5and (B) cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect thereto as contemplated by Section 2.07 and Section 2.04(f)). The shares of Class A Parent Common Stock constituting the part of such Merger Consideration will shall be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stock.
(c) If any portion of the Merger Consideration (or cash in lieu of any fractional shares of Parent Common Stock or any dividends and distributions with respect thereto contemplated by Section 2.07 or Section 2.04(f)) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has such transfer or similar Taxes have been paid or is are not payable.
(d) After Upon the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockCompany Common Stock thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCoParent, the Surviving Corporation or the Exchange Agent for any reason, they will shall be canceled cancelled and exchanged for the Merger Consideration payable (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect of to the Clearwire Capital Stock provided for, Merger Consideration as contemplated by Section 2.07 and Section 2.04(f)) with respect thereto in accordance with the procedures set forthforth in, in or as otherwise contemplated by, this Article Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve (12) months after following the Closing Date will shall be returned delivered to NewCoParent or as otherwise instructed by Parent, on demand. Any and any such holder who has not exchanged shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before Section 2.04 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Merger Considerationthereto as contemplated by Section 2.07 and Section 2.04(f)), in respect of those shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) shall not be liable to any holder of shares of Clearwire Capital Company Common Stock for any amounts properly paid to a public official under in compliance with applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Common Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will Authority shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates or the transfer of any Uncertificated Shares 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 Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.07, 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 Effective Time that were paid prior to the time of such 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 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 shares of Parent Common Stock constituting the Merger Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.07, 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 Section 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 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 3 contracts
Samples: Merger Agreement (Schwab Charles Corp), Merger Agreement (Td Ameritrade Holding Corp), Merger Agreement
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) for the purpose of exchanging the Merger Consideration for:
of: (i) exchanging the Per Share Common Stock Consideration for certificates representing shares of Clearwire Capital Company Common Stock (the “Common Stock Certificates”) or
(ii) or uncertificated shares of Clearwire Capital Company Common Stock (the “Uncertificated Shares”); (ii) exchanging the Per Share Series B Consideration for certificates representing shares of the Series B Preferred Stock (the “Series B Certificates”); (iii) exchanging the Per Share Series C Consideration for certificates representing shares of the Series C Preferred Stock (the “Series C Certificates”); and (iv) exchanging the Per Share Warrant Consideration for each share of Company Common Stock subject to the Company Warrants. Promptly At or as needed promptly following the Effective Time, Parent shall or shall cause the Surviving Corporation to make available to the Exchange Agent: (i) the Common Stock Consideration to be paid in respect of the Common Stock Certificates and the Uncertificated Shares; (ii) the Series B Consideration to be paid in respect of the Series B Certificates; (iii) the Series C Consideration to be paid in respect of the Series C Certificates; and (iv) the Warrant Consideration to be paid in respect of the Company Warrants.
(b) As soon as reasonably practicable after the Closing DateEffective Time (but not later than two Business Days thereafter), NewCo will send, or will Parent and the Surviving Corporation shall cause the Exchange Agent to send, mail to each record holder of shares of Clearwire Capital Company Common Stock (other than Excluded Shares and Dissenting Shares) at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will to the shares of Company Common Stock shall pass, only on upon proper delivery of the Common Stock Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
(b) for use in such exchange. Each record holder of shares of Clearwire Capital Company Common Stock will that have been converted into the right to receive the Per Share Common Stock Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Common Stock Certificate, together with a properly completed and executed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Per Share Common Stock constituting the Merger Consideration will be (subject to any applicable withholding Tax specified in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable Section 2.08) in respect of the Clearwire Capital Stock.
(c) Company Common Stock represented by a Common Stock Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Common Stock Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive, in accordance with the terms hereof, such Per Share Common Stock Consideration. If any portion of the Merger Common Stock Consideration is to be paid to a Person other than the Person in whose name the surrendered Common Stock Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Common Stock Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
in each case, as determined by the Exchange Agent and as set forth in the letter of transmittal and related instructions and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Common Stock Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent and the Surviving Corporation that such Tax has been paid or is not payable.
(c) At least five Business Days prior to the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Series B Preferred Stock or Series C Preferred Stock a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Series B Certificates or Series C Certificates, as applicable, to the Exchange Agent) for use in such exchange. At the Effective Time or promptly thereafter (but no later than one Business Day thereafter), (i) each holder of a Series B Certificate that has been converted into the right to receive the Per Share Series B Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a Series B Certificate, together with a properly completed letter of transmittal, the Per Share Series B Consideration in respect of the Series B Preferred Stock represented by the Series B Certificate and (ii) each holder of a Series C Certificate that has been converted into the right to receive the Per Share Series C Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a Series C Certificate, together with a properly completed letter of transmittal, the Per Share Series C Consideration in respect of the Series C Preferred Stock represented by the Series C Certificate. Until so surrendered, each such Series B Certificate and Series C Certificate shall represent after the Effective Time for all purposes only the right to receive such Per Share Series B Consideration and Per Share Series C Consideration, respectively. If any portion of the Series B Consideration or Series C Consideration is to be paid to a Person other than the Person in whose name the surrendered Series B Certificate or Series C Certificate, as applicable, 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 Exchange Agent any Taxes required as a result of such payment to 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.
(d) After Promptly after the Effective Time, Parent shall cause the Exchange Agent to pay to each holder of a Company Warrant as of immediately prior to the Effective Time the Per Share Company Warrant Consideration for each share of Company Common Stock subject to such Company Warrant, payable to such holder pursuant to Section 2.04(a) in accordance with joint written instructions provided by the Company and the holder of such Company Warrant to the Exchange Agent.
(e) At the Effective Time, the stock transfer books of the Company shall be closed and there will shall be no further registration of transfers of shares of Clearwire Capital StockCompany Common Stock or Company Preferred Stock or transfers of Company Warrants. If, after the Effective Time, Common Stock Certificates, Uncertificated Shares, Series B Certificates, Series C Certificates or Uncertificated Shares Company Warrants are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger applicable Per Share Common Stock Consideration, Per Share Series B Consideration, Per Share Series C Consideration payable in respect of the Clearwire Capital Stock or Per Share Warrant Consideration provided for, and in accordance with the procedures set forth, in this Article 2, subject to Applicable Law in the case of Dissenting Shares.
(ef) Any portion of the Merger Common Stock Consideration, Series B Consideration, Series C Consideration or Warrant Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.04(a) (including any proceeds of any investments thereof) that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock or Company Preferred Stock or the holders of Company Warrants twelve months after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Common Stock or Company Preferred Stock or a Company Warrant for the Merger Per Share Common Stock Consideration, Per Share Series B Consideration, Per Share Series C Consideration or Per Share Warrant Consideration, as applicable, in accordance with this Section 2.6 before 2.04 prior to that date will time shall thereafter look only to NewCo Parent (subject to abandoned property, escheat or other similar Applicable Laws) for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, consideration in respect of those such shares or warrants without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will not neither Parent nor the Surviving Corporation shall be liable to any holder of shares of Clearwire Capital Company Common Stock or Company Preferred Stock or the holders of Company Warrants for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Applicable Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Hewlett Packard Co), Merger Agreement (Palm Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the First Effective Time, Parent and Bidco 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 for:
(i) certificates representing payable in respect of the shares of Clearwire Capital Stock (Company Common Stock. As of the “Certificates”) or
(ii) uncertificated First Effective Time, in consideration of and in exchange for the issuance to Parent by Bidco of 1,900 shares of Clearwire Capital common stock of Bidco and the Cancellation, Parent shall allot Parent Ordinary Shares which may be represented in uncertificated form in CREST or American depositary receipts evidencing (or evidence of Parent ADSs in book-entry form representing) the Parent ADSs issuable pursuant to Section 2.03(a). As of the First Effective Time, Parent (in the case of (x)) and Parent or Bidco (in the case of (y)) shall deposit or cause to be deposited with the Exchange Agent, for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Section 2.05 through the Exchange Agent, (x) American depositary receipts evidencing (or evidence of Parent ADSs in book-entry form representing) the Parent ADSs issuable pursuant to Section 2.03(a) in exchange for outstanding shares of Company Common Stock and (y) cash sufficient to pay the “Uncertificated Shares”aggregate Cash Consideration payable pursuant to Section 2.03(a). 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 Parent ADSs to which such holder is entitled pursuant to Section 2.09. Promptly after the First Effective Time (and in no event more than two Business Days following the Closing Date), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Common Stock at the First Effective Time a letter of transmittal and instructions that will (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the First Effective Time and which shall specify that the (A) delivery will shall be effected, and risk of loss and title will shall pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange and (B) each holder of shares of Company Common Stock may elect to receive a number of Parent Ordinary Shares in lieu of Parent ADSs as Share Consideration pursuant to Section 2.05(g). All certificates (or evidence of Parent ADSs in book-entry form) and cash deposited with the Exchange Agent pursuant to this Section 2.05 shall be referred to in this Agreement as the “Exchange Fund”. Parent shall cause, or shall procure that Bidco 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. 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 Parent or Bidco; provided, that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; 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 and, to the extent necessary to pay the Merger Consideration, Parent shall promptly cause, or shall procure that Bidco cause, to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock 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, Parent on termination of the Exchange Fund.
(b) Each holder of shares of Clearwire Capital Company Common Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
on (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and duly executed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of each share of the holder has a right Company Common Stock represented by such Certificate or Uncertificated Share (including cash in lieu of any fractional Parent ADSs and any dividends and distributions with respect to receive under the Share Consideration as contemplated by Section 2.52.05(f) and Section 2.09). The shares of Class A Common Stock Parent ADSs constituting the Merger Consideration will Share Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate American depository receipt evidencing such Parent ADSs is requested by the a holder of shares of Company Common Stock or is otherwise required under applicable Applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stock.
(c) If any portion of the Merger Consideration (or cash in lieu of any fractional Parent ADSs or any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.05(f) and Section 2.09) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any stamp duty, stamp duty reserve tax, transfer or other similar Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has such stamp duty, stamp duty reserve tax, transfer or similar Taxes have been paid or is are not payable.
(d) After From and after the First Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockCompany Common Stock thereafter on the records of the Company. If, after the First Effective Time, Certificates or Uncertificated Shares are presented to NewCoParent, the First Surviving Corporation, the Surviving Company or the Exchange Agent for any reason, they will shall be canceled cancelled and exchanged for the Merger Consideration payable (and cash in lieu of any fractional Parent ADSs and any dividends and distributions with respect of to the Clearwire Capital Stock provided for, Share Consideration as contemplated by Section 2.05(f) and Section 2.09) with respect thereto in accordance with the procedures set forthforth in, in or as otherwise contemplated by, this Article 2II (including this Section 2.05).
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve 12 months after following the Closing Date will shall be returned delivered to NewCoParent or as otherwise instructed by Parent, on demand. Any and any such holder who has not exchanged shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.05 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, Consideration (and cash in lieu of any fractional Parent ADSs and any dividends and distributions with respect to the Merger ConsiderationShare Consideration as contemplated by Section 2.05(f) and Section 2.09), in respect of those shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent and its Subsidiaries (including Bidco, the Surviving Company and its Subsidiaries) shall not be liable to any holder of shares of Clearwire Capital Company Common Stock for any amounts properly paid to a public official under in compliance with applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Common Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will Authority shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any 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 2.05, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the Parent ADSs constituting the Share Consideration have been registered, (i) in connection with the payment of the Share Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.09, and (y) the aggregate amount of all dividends or other distributions payable with respect to such Parent ADSs, with a record date on or after the First Effective Time that were paid prior to the time of such 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 Share Consideration with a record date on or after the First 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 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 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 Section 2.05.
(g) Notwithstanding anything in this Section 2.05 to the contrary, Parent shall cooperate with the Exchange Agent and ADS Depository, as necessary, to provide for (i) the ability of holders of Company Common Stock to elect to receive Parent Ordinary Shares in lieu of Parent ADSs and (ii) the delivery of such Parent Ordinary Shares in lieu of Parent ADSs as the Share Consideration (and in satisfaction of such obligation) to the extent elected by the holders of shares of Company Common Stock pursuant to Section 2.05(a). The number of Parent Ordinary Shares to be delivered in lieu of Parent ADSs shall be the number of underlying Parent Ordinary Shares represented by such Parent ADSs, subject to the delivery of cash in lieu of fractional Parent Ordinary Shares in accordance with this Section 2.05 and Section 2.09 which sections shall be applied mutatis mutandis with respect to those holders of Company Common Stock that elect to receive Parent Ordinary Shares in lieu of Parent ADSs.
Appears in 3 contracts
Samples: Merger Agreement (Astrazeneca PLC), Merger Agreement (Alexion Pharmaceuticals, Inc.), Merger Agreement (Alexion Pharmaceuticals, Inc.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, CME shall appoint an exchange agent reasonably acceptable to GFI (the “Exchange Agent Agent”) for the purpose of exchanging Certificates for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly As promptly as reasonably practicable after the Closing DateEffective Time, NewCo but in no event more than five Business Days following the Effective Time, CME will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital GFI Common Stock at as of the Effective Time Time, whose shares of GFI Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 1.7 (Effect on Capital Stock), a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of loss in lieu thereof) to the Exchange Agent) in such form as GFI and CME may reasonably agree, 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 or prior to the Effective Time, CME shall cause to be deposited with the Exchange Agent, for the benefit of the Uncertificated Shares holders of shares of GFI Common Stock, shares of CME 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 1.7 (Effect on Capital Stock) 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 this Article II. Following the Effective Time, CME 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) (Dividends and Distributions). All cash and book-entry shares representing CME Class A Common Stock deposited with the Exchange Agent shall be referred to in this Agreement as the “Exchange Fund.” The Exchange Agent shall deliver the Merger Consideration contemplated to be issued pursuant to Section 1.7 (Effect on Capital Stock) 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 in short-term direct obligations of the U.S. or short-term obligations for which the full faith and credit of the U.S. is pledged to provide for payment of all principal and interest (or funds that invest in such obligations); provided that no gain or loss thereon shall affect the amounts payable to the holders of GFI Common Stock pursuant to this Agreement. If for any reason (including losses) the cash in the Exchange Fund shall be insufficient to satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, CME shall promptly deposit cash into the Exchange 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 the property of, and paid to, CME. CME shall be responsible for all fees and expenses of the Exchange Agent.
(b) Each holder of shares of Clearwire Capital GFI Common Stock will be entitled that have been converted into the right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent (or other evidenceAgent, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right will be entitled to receive under Section 2.5. The in exchange therefor (i) the number of shares of CME Class A Common Stock constituting the Merger Consideration will (which shall be in uncertificated non-certificated book-entry form, form unless a physical certificate is requested requested) representing, in the aggregate, the whole number of shares of CME 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) (Dividends and Distributions) (less any required Tax withholding), in each case pursuant to Section 1.7 (Effect on Capital Stock) and this Article II. The Merger Consideration shall be paid as promptly as practicable after receipt by the holder or is otherwise required under applicable Law. As a result Exchange Agent of the MergerCertificate and letter of transmittal in accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration, at cash in lieu of fractional shares or unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable Consideration, cash in respect lieu of the Clearwire Capital Stockany fractional shares and any unpaid dividends and distributions.
(c) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the of such payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or Uncertificated Share shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. 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 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 Certificate or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital GFI Common Stock. From and after the Effective Time, the holders of Certificates representing shares of GFI Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of GFI Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent or CME, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in Article I and this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital GFI Common Stock twelve months one year after the Closing Date will Effective Time shall be returned to NewCoCME, on demand. Any and any such holder who has not exchanged his or her shares of Clearwire Capital GFI Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.1 prior to that date will time shall thereafter look only to NewCo CME, and CME shall remain liable, for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such holder’s shares without any interest thereonof GFI Common Stock. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will not neither CME, Merger Sub 1, Merger Sub 2, nor GFI shall be liable to any holder of shares of Clearwire Capital GFI Common Stock for any amounts properly paid Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions delivered to a public official under any Governmental Entity pursuant to applicable abandoned property, escheat or similar property Laws. Any amounts Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions remaining unclaimed by holders of shares of Clearwire Capital GFI Common Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the as such amounts would otherwise escheat to or become the property of any Governmental Authority) will becomeEntity shall, to the extent permitted by applicable Law, become the property of NewCo, CME 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 Class A 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 2.1. Following such surrender, subject to the effect of escheat (in accordance with Section 2.1(e)), Tax or other applicable Law, there shall be paid, without interest, to the record holder of the shares of CME Class A Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such shares of CME Class A 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 CME Class A 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 CME Class A Common Stock, all shares of CME 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.
Appears in 2 contracts
Samples: Merger Agreement (Cme Group Inc.), Merger Agreement (GFI Group Inc.)
Surrender and Payment. (a) Clearwire has appointed the Exchange Agent Upon surrender for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing Date, NewCo will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock at the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) surrender cancellation to the Exchange Agent of a Certificatecertificate formerly representing shares of Company Common Stock, together with the Letter of Transmittal, duly executed and completed in accordance with the instructions thereto, the holder thereof will be entitled to receive (i) a properly completed letter certified or bank cashier's check in the amount equal to the aggregate amount of transmittal, or
Merger Consideration that takes the form of cash which such holder has the right to receive pursuant to the provisions of this Article I (including any dividends or distributions related thereto which such former holder of Company Common Stock is entitled to receive pursuant to the provisions of Section 1.07(c) and any cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.09) and/or (ii) receipt certificates representing the aggregate number of an “agent’s message” by shares of Parent Common Stock with respect to the Exchange Agent (or other evidenceMerger Consideration that takes the form of Parent Company Stock which such holder has the right to receive pursuant to the provisions of this Article I, less the amount of any required withholding taxes, if any, of transfer as in accordance with Section 1.10. After the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated SharesEffective Time and until so surrendered, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The each certificate representing shares of Class A Company Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(cb) If any portion of the Merger Consideration (or any portion thereof) is to be paid delivered to a Person other than the Person in whose name the surrendered Certificate certificate or the transferred Uncertificated Share is certificates are registered, it will be a condition to the payment that
(i) either of such delivery that the surrendered Certificate will certificate or certificates shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result by reason of the payment delivery of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered certificate or Uncertificated Share certificates or such Person shall establish to the satisfaction of the Exchange Agent that the any such Tax has been paid or is not payableapplicable.
(c) No dividends or other distributions declared or made with respect to Parent Common Stock on or after the Effective Time will be paid to the holder of any certificate that theretofore evidenced shares of Company Common Stock until such certificate is surrendered as provided in this Section 1.07. Upon such surrender, Parent will be pay to the holder of the certificates evidencing shares of Parent Common Stock issued in exchange therefor, without interest, the amount of dividends or other distributions with a record date after the Effective Time payable with respect to shares of Parent Common Stock.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a) 1.06 that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve months two years after the Closing Date Effective Time will be returned to NewCo, on Parent upon demand. Any such holder who has not exchanged shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before Article I prior to that date time thereafter will look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of such shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretoCompany Common Stock.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Century Communications Corp), Agreement and Plan of Merger (Adelphia Communications Corp)
Surrender and Payment. (a) Clearwire has appointed Prior to the Mailing Date, CME shall appoint an exchange agent reasonably acceptable to GFI (the "Exchange Agent Agent") for the purpose of exchanging Certificates for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly As promptly as reasonably practicable after the Closing DateEffective Time, NewCo but in no event more than five Business Days following the Effective Time, CME will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital GFI Common Stock at as of the Effective Time Time, whose shares of GFI Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 1.7 (Effect on Capital Stock) and Section 1.10 (Election Procedures), a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of loss in lieu thereof) to the Exchange Agent) in such form as GFI and CME may reasonably agree, 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 or prior to the Effective Time, CME shall cause to be deposited with the Exchange Agent, for the benefit of the Uncertificated Shares holders of shares of GFI Common Stock, shares of CME 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 1.7 (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 this Article II. Following the Effective Time, CME 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) (Dividends and Distributions). All cash and book-entry shares representing CME Class A Common Stock deposited with the Exchange Agent shall be referred to in this Agreement as the "Exchange Fund." The Exchange Agent shall deliver the Merger Consideration contemplated to be issued pursuant to Section 1.7 (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 in short-term direct obligations of the U.S. or short-term obligations for which the full faith and credit of the U.S. is pledged to provide for payment of all principal and interest (or funds that invest in such obligations); provided that no gain or loss thereon shall affect the amounts payable to the holders of GFI Common Stock pursuant to this Agreement. If for any reason (including losses) the cash in the Exchange Fund shall be insufficient to satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, CME shall promptly deposit cash into the Exchange 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 the property of, and paid to, CME. CME shall be responsible for all fees and expenses of the Exchange Agent.
(b) Each holder of shares of Clearwire Capital GFI Common Stock will be entitled that have been converted into the right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent (or other evidenceAgent, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right will be entitled to receive under Section 2.5. The in exchange therefor (i) the number of shares of CME Class A Common Stock constituting the Merger Consideration will (which shall be in uncertificated non-certificated book-entry form, form unless a physical certificate is requested requested) representing, in the aggregate, the whole number of shares of CME 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 pursuant to Section 1.7(b), 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) (Dividends and Distributions) (less any required Tax withholding), in each case pursuant to Section 1.7 (Effect on Capital Stock), Section 1.10 (Election Procedures) and this Article II. The Merger Consideration shall be paid as promptly as practicable after receipt by the holder or is otherwise required under applicable Law. As a result Exchange Agent of the MergerCertificate and letter of transmittal in accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration, at cash in lieu of fractional shares or unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable Consideration, cash in respect lieu of the Clearwire Capital Stockany fractional shares and any unpaid dividends and distributions.
(c) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the of such payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or Uncertificated Share shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. 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 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 Certificate or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital GFI Common Stock. From and after the Effective Time, the holders of Certificates representing shares of GFI Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of GFI Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent or CME, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in Article I and this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital GFI Common Stock twelve months one year after the Closing Date will Effective Time shall be returned to NewCoCME, on demand. Any and any such holder who has not exchanged his or her shares of Clearwire Capital GFI Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.1 prior to that date will time shall thereafter look only to NewCo CME, and CME shall remain liable, for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such holder's shares without any interest thereonof GFI Common Stock. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will not neither CME, Merger Sub 1, Merger Sub 2, nor GFI shall be liable to any holder of shares of Clearwire Capital GFI Common Stock for any amounts properly paid Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions delivered to a public official under any Governmental Entity pursuant to applicable abandoned property, escheat or similar property Laws. Any amounts Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions remaining unclaimed by holders of shares of Clearwire Capital GFI Common Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the as such amounts would otherwise escheat to or become the property of any Governmental Authority) will becomeEntity shall, to the extent permitted by applicable Law, become the property of NewCo, CME 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 Class A 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 2.1. Following such surrender, subject to the effect of escheat (in accordance with Section 2.1(e)), Tax or other applicable Law, there shall be paid, without interest, to the record holder of the shares of CME Class A Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such shares of CME Class A 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 CME Class A 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 CME Class A Common Stock, all shares of CME 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.
Appears in 2 contracts
Samples: Merger Agreement (Jersey Partners Inc.), Merger Agreement (Jersey Partners Inc.)
Surrender and Payment. (a) Clearwire has appointed Two Business Days prior to the Exchange Agent for Closing, the purpose Sellers’ Representative shall deliver a certificate executed by it which will certify the amount of exchanging the Per Oaktree Seller Merger Consideration, the amount of the Per Xxxxxx Unit Merger Consideration, the number of shares of Parent Common Stock to be delivered to each Seller at Closing, based on the number or percentage of Oaktree Units and Xxxxxx Units, as applicable, owned by such Seller immediately prior to the Effective Time (the “Merger Consideration Allocation Certificate”). The number of shares of Parent Common Stock to be delivered to the Sellers as set forth in such certificate, will be, in the aggregate, an amount that shall not exceed the Aggregate Merger Consideration. After execution of the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (Allocation Certificate, there shall be no transfers on the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing Date, NewCo will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock at the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery books of the Certificates or transfer Oceanbulk Holdcos of the Uncertificated Shares any limited liability company interests of either Oceanbulk Holdco that were outstanding immediately prior to the Exchange Agentsuch execution.
(b) Each holder of shares of Clearwire Capital Stock will At the Closing, each Seller shall be entitled to receive, on
receive (iand shall receive from Parent) surrender to a number of whole shares of Parent Common Stock set forth opposite such Seller’s name on the Exchange Agent of a Merger Consideration Allocation Certificate, together with a properly completed letter any amounts to which such holder is entitled pursuant to Section 3.4 and Section 8.3. Parent shall cause such shares of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) Parent Common Stock to be issued in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, form at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital StockClosing.
(c) If any portion All shares of Parent Common Stock delivered pursuant to Section 3.2(b) for exchange of Oaktree Units or Xxxxxx Units, as applicable, in accordance with the Merger Consideration is terms hereof shall be deemed to be paid to a Person other than the Person have been delivered in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the full satisfaction of the Exchange Agent that the Tax has been paid all rights pertaining to such Oaktree Units or is not payableXxxxxx Units, as applicable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates Oaktree Units or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2Xxxxxx Units.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Oaktree Capital Management Lp), Merger Agreement (Star Bulk Carriers Corp.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Bracknell shall appoint an agent reasonably acceptable to Able (the "Exchange Agent") for the purpose of exchanging certificates representing Able Shares and Series D Shares. As of the Effective Time, Subco shall deposit with the Exchange Agent for the purpose benefit of exchanging the Merger Consideration for:
(i) holders of Able Shares and Series D Shares, for exchange in accordance with this Section 2.03, through the Exchange Agent, certificates representing the shares of Clearwire Capital Bracknell Common Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated issuable pursuant to Section 2.02 in exchange for outstanding Able Shares and Series D Shares”). Promptly after the Closing DateEffective Time, NewCo Subco will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Able Shares or Series D Shares at the Effective Time a letter of transmittal and instructions that will for use in such exchange (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates certificates representing Able Shares or transfer of the Uncertificated Series D Shares to the Exchange Agent).
(b) Each holder of shares of Clearwire Capital Stock will be entitled Able Shares or Series D Shares that have been converted into a right to receivereceive Bracknell Common Stock, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Able Shares or Series D Shares, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (transmittal covering such Able Shares or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Series D Shares, the aggregate Merger Consideration will be entitled to receive in exchange therefor that the number of whole shares of Bracknell Common Stock which such holder has a the right to receive under pursuant to Section 2.52.02, and the certificate or certificates for Able Shares or Series D Shares so surrendered shall be cancelled. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry formUntil so surrendered, unless a physical each such certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergershall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stockpurposes, except only the right to receive the Merger Consideration payable upon such surrender a certificate representing shares of Bracknell Common Stock and cash in respect lieu of the Clearwire Capital Stockany fractional shares of Bracknell Common Stock as contemplated by this Section 2.03 and Section 2.05.
(c) If any portion shares of the Merger Consideration is Bracknell Common Stock are to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment issued to a Person other than the registered holder of Able Shares or Series D Shares represented by the Certificate certificate or Uncertificated Share certificates surrendered in exchange therefor, it shall be a condition to such issuance 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 issuance shall pay to the Exchange Agent any transfer Tax or other Taxes required as a result of such issuance to a Person other than the registered holder of such Able Shares or Series D Shares or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockAble Shares or Series D Shares. If, after the Effective Time, Certificates certificates representing Able Shares or Uncertificated Series D Shares are presented to NewCothe Surviving Corporation, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock as provided for, and in accordance with the procedures set forth, in this Article 2II.
(e) Any portion shares of the Merger Consideration Bracknell Common Stock made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) that remains remain unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.Able Shares or
Appears in 2 contracts
Samples: Merger Agreement (Bracknell Corp), Merger Agreement (Able Telcom Holding Corp)
Surrender and Payment. (a) Clearwire has appointed Prior to the Exchange Agent Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the "EXCHANGE AGENT") for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Common Stock (the “Certificates”"CERTIFICATES") or
(ii) uncertificated for the Merger Consideration, and Parent and Exchange Agent shall enter into an exchange agreement which shall, in form and substance, be reasonably acceptable to the Company. Prior to the Effective Time, Parent shall deposit or cause to be deposited with the Exchange Agent in a separate fund established for the benefit of the holders of shares of Clearwire Capital Stock Common Stock, cash sufficient to pay the aggregate Merger Consideration required to be paid for all of the Certificates at the Effective Time. Any cash deposited with the Exchange Agent shall not be used for any purpose other than as set forth in this Article 2 and shall be invested by the Exchange Agent as directed by Parent or the Surviving Corporation in: (A) direct obligations of, or obligations the “Uncertificated Shares”principal of and interest on which are unconditionally guaranteed by, the United States of America with a remaining term at the time of acquisition thereof not in excess of 90 days, (B) money market accounts or certificates of deposit maturing within 90 days of the acquisition thereof and issued by a bank or trust company organized under the laws of the United States of America or a State thereof having a combined capital surplus in excess of $500,000,000 (a "UNITED STATES BANK"), (C) commercial paper issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor's Corporation and P1 by Xxxxx'x Investors Service, Inc. with a remaining term at the time of acquisition thereof not in excess of 90 days or (D) demand deposits with any United States Bank. Promptly The earnings and interest thereon shall be paid to Parent or as Parent directs. As soon as reasonably practicable (but not more than five Business Days) after the Closing DateEffective Time, NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital Common Stock at the Effective Time Time, a letter of transmittal and instructions that will for use in effecting the surrender of a Certificate in exchange for payment of the applicable Merger Consideration (which shall (i) be in a form reasonably acceptable to each of Parent and the Company and (ii) specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Common Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
(i) upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” transmittal and such other documents as may reasonably be required by the Exchange Agent (Agent, the applicable Merger Consideration in respect of the Common Stock represented by a Certificate. Such payment of the Merger Consideration, without any interest thereon, shall be sent to such holder of shares of Common Stock promptly after receipt of such Certificate and letter of transmittal and other documents by the Exchange Agent. Until so surrendered or other evidencetransferred, if any, of transfer as the Exchange Agent case may reasonably request) in the case of a book-entry transfer of Uncertificated Sharesbe, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at each such Certificate shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to deposited with the Exchange Agent under pursuant to Section 2.6(a2.05(a) that remains unclaimed by the holders of shares of Clearwire Capital Common Stock twelve six months after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.05 prior to that date will time shall thereafter look only to NewCo Parent or the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares Consideration without any interest thereon. Regardless Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the preceding sentence, NewCo will not Company or the Exchange Agent shall be liable to any holder of shares of Clearwire Capital Common Stock for any amounts properly Merger Consideration paid to a public official under pursuant to any applicable abandoned property, escheat or similar Lawslaws. Any amounts Merger Consideration remaining unclaimed by holders of shares of Clearwire Capital Common Stock six five years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts any Merger Consideration would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Lawlaw, the property of NewCo, the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Sylvan Inc), Merger Agreement (Sylvan Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the First Effective Time, Parent shall appoint an agent (the “Exchange Agent”), which Exchange Agent shall be reasonably satisfactory to the Company, for the purpose of exchanging for the Merger Per Share Consideration for:
(i) certificates representing shares of Clearwire Capital Stock Class A Common Shares (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Stock Class A Common Shares (the “Uncertificated SharesInterests”). .
(b) Promptly after the First Effective Time (and in no event later than one (1) Business Day following the Closing Date), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares record of Clearwire Capital Stock at Class A Common Shares (for the Effective Time avoidance of doubt, including the Conversion Shares and Converted Equity Award Shares) a letter Letter of transmittal Transmittal to be completed and instructions that will specify that delivered by each such holder of Class A Common Shares to effect the delivery will be effected, and risk exchange of loss and title will pass, only on proper delivery such holder’s Class A Common Shares for the payment of the Certificates consideration payable or transfer deliverable pursuant to Section 2.03 in respect of each such Class A Common Share, without any interest thereon.
(c) At or prior to the Uncertificated Shares Closing, Parent shall deliver or cause to be delivered (including, in the case of an Alternative Structure Merger, by delivery from the Company from its Available Cash, which the Company shall deliver to the Exchange Agent following at least five (5) Business Days’ written request from Parent (provided that in no event shall the Company be required to deliver such Available Cash to the Exchange Agent earlier than the Closing Date)) to the Exchange Agent, in trust for the benefit of holders of Class A Common Shares, evidence of book-entry shares (or certificates if requested by any such holder) representing the number of shares of Parent Common Stock, and, prior to the First Effective Time, an amount in cash by wire transfer of immediately available funds (the “Closing Wire”), in each case sufficient to pay to the holders of Class A Common Shares the aggregate Per Share Cash Consideration and the aggregate Per Share Stock Consideration (together with cash in lieu of fractional shares in accordance with Section 2.11 and any dividends or distributions with respect to shares of Parent Common Stock in accordance with Section 2.08(h)) to be paid to the holders of Class A Common Shares in respect of Certificates or Uncertificated Interests in accordance with Section 2.03 and the Allocation Schedule; provided, that if the amount of the Closing Wire is in excess of the amount necessary to pay the holders of Class A Common Shares the aggregate Per Share Cash Consideration in accordance with the final Allocation Schedule, the Exchange Agent shall wire such excess amount to Parent within two (2) Business Days of the final determination of the Allocation Schedule.
(bd) Each holder Upon delivery to the Exchange Agent of shares a properly completed Letter of Clearwire Capital Stock will be entitled to receive, on
Transmittal and (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
Certificate or (ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of such evidence of transfer as the Exchange Agent may reasonably request) request in the case of a book-entry transfer of Uncertificated SharesInterests, the aggregate Merger Consideration that the a holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to Shares whose Class A Common Shares have any rights with respect to the Clearwire Capital Stock, except been converted into the right to receive the Merger consideration to be paid pursuant to Section 2.03 hereto shall be entitled to promptly, but in no event more than three Business Days after receipt by the Exchange Agent of item (i) or (ii) above (but in no event prior to the Closing), receive the Per Share Consideration represented by such Certificate or for each such Uncertificated Interest (together with cash in lieu of fractional shares in accordance with Section 2.11 and any dividends or distributions with respect to shares of Parent Common Stock in accordance with Section 2.08(h)). Notwithstanding the foregoing, (i) a holder of Class A Common Shares who has delivered to the Exchange Agent not later than 5:30 p.m. New York time on the Business Day prior to the Closing Date a properly completed Letter of Transmittal, together with either (x) a Certificate or (y) evidence of transfer as the Exchange Agent may reasonably request of a book-entry transfer of Uncertificated Interests, shall be paid by the Exchange Agent, on the Closing Date, the Per Share Consideration payable for each such Class A Common Share represented by such Certificate or for each such Uncertificated Interest (together with cash in lieu of fractional shares in accordance with Section 2.11 and any dividends or distributions with respect to shares of Parent Common Stock in accordance with Section 2.08(h)). Until so surrendered or transferred, as the Clearwire Capital Stockcase may be, each Certificate or Uncertificated Interest (other than Dissenting Shares) shall represent after the Closing for all purposes only the right to receive the consideration to be paid pursuant to Section 2.03 hereto and the Certificate or Uncertificated Interest shall be canceled and cease to exist.
(ce) If any portion of the Merger Consideration consideration to be paid pursuant to Section 2.03 hereto is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Interest is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will Interest shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share Interest or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(df) After the First Effective Time, the stock transfer books of the Company shall be closed and there will shall be no further registration of transfers of shares of Clearwire Capital StockClass A Common Shares. If, after the Effective TimeClosing, Certificates or Uncertificated Shares Interests are presented to NewCoParent, the First Surviving Corporation, the Surviving Company, the Final Surviving Company or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and consideration to be paid pursuant to Section 2.03 hereto in accordance with this Agreement, including the procedures set forth, forth in this Article 2.
(eg) Prior to the surrender of any applicable Certificate or transfer of any applicable Uncertificated Interest by a holder of Class A Common Shares, no portion of the consideration to be paid pursuant to Section 2.03 hereto shall be paid to such holder in respect of such Certificate or Uncertificated Interest. Notwithstanding the foregoing, none of Parent, Merger Subs, Production Company, UnSub, the Company, the First Surviving Corporation, the Surviving Company, the Final Surviving Company, the Exchange Agent or any other Person shall be liable to any holder of Class A Common Shares for any amount properly delivered to a Governmental Authority pursuant to applicable abandoned property, escheat or similar Applicable Laws.
(h) No dividends or other distributions with respect to shares of Parent Common Stock issued in the First Merger shall be paid to the holder of any unsurrendered Certificates or Uncertificated Interests until such Certificates or Uncertificated Interests are surrendered as provided in this Section 2.08. 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 Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such shares of Parent Common Stock with a record date after the First 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 First 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 First Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the First Effective Time.
(i) Any portion of the Merger aggregate Per Share Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.08(c) that remains unclaimed by the holders of shares of Clearwire Capital Stock Company Stockholders twelve months after the Closing Date will First Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock its Class A Common Shares for the Merger Per Share Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo Parent and the Final Surviving Company for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Per Share Consideration in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent and the Final Surviving Company shall not be liable to any holder of shares of Clearwire Capital Stock Class A Common Shares for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretolaws.
Appears in 2 contracts
Samples: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Surrender and Payment. (a) Clearwire has appointed The Parties agree that American Stock Transfer and Trust shall act as transfer agent hereunder (the "Exchange Agent") with respect to the Merger.
(b) Promptly after the Effective Time, but in any event not later than five (5) business days thereafter, the Exchange Agent for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing Date, NewCo will send, or will cause the Exchange Agent to send, shall send to each holder of shares a stock certificate or certificates that immediately prior to the Effective Time represented outstanding Merger Sub Common Stock, Gemini Common Stock or Uni-Pixel Common Stock (the "Stock Certificates") a letter of Clearwire Capital transmittal and instructions for use in effecting the exchange of the Stock at Certificates for stock certificates representing the applicable Merger Consideration described in Section 3.2 above. Provision also shall be made for holders of the Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions that will specify that and to deliver in person immediately after the delivery will be effectedEffective Time such letter of transmittal and Stock Certificates in exchange for the applicable Merger Consideration.
(c) After the Effective Time, and risk of loss and title will passthe Stock Certificates shall represent the right, only on proper delivery of the Certificates or transfer of the Uncertificated Shares upon surrender thereof to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) surrender to the Exchange Agent of a Certificate, together with a duly executed and properly completed letter of transmittaltransmittal relating thereto, or
(ii) receipt of an “agent’s message” by to receive in exchange therefore the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate applicable Merger Consideration that subject to any required tax withholding, and the holder has a right to receive under Section 2.5Stock Certificates so surrendered shall be canceled. The shares of Class A Common Until so surrendered, each Stock constituting the Merger Consideration will be in uncertificated book-entry formCertificate shall, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the applicable Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(cd) If any portion shares of the Merger Consideration is Company Common Stock are to be paid issued to a Person (as defined above) other than the Person registered holder of the Stock Certificate(s) surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share is registeredexchange therefore, it will shall be a condition to such issuance or payment that the payment that
(iStock Certificate(s) either the surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the payment will such issuance shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the payment such issuance to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2applicable.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Merger Sub Common Stock, Uni-Pixel Common Stock twelve months or Gemini Common Stock one (1) year after the Closing Date will Effective Time shall be returned to NewCothe Company, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital such holder's Stock for the Merger Consideration Certificates in accordance with this Section 2.6 before 3.3 prior to that date will time shall thereafter look only to NewCo for payment of the Company, as a general creditor thereof, to exchange such Stock Certificates or to pay amounts to which such holder is entitled pursuant to Section
3.1. If outstanding Stock Certificates are not surrendered prior to six (6) years after the Effective Time (or, in any particular case, prior to such earlier date on which any Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration issuable or payable in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital such Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts Certificates would otherwise escheat to or become the property of any Governmental Authority) will becomegovernmental unit or agency), the Merger Consideration issuable or payable in respect of such Stock Certificates shall, to the extent permitted by applicable Lawlaw, become the property of NewCothe Company, free and clear of any all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, none of the Parties hereto shall be liable to any holder of Stock Certificates for any amount paid, or Merger Consideration delivered, to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) If any Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Stock Certificate to be lost, stolen or destroyed and, if required by the Company, the posting by such Person of a bond in such reasonable amount as the Company may direct as indemnity against any claim that may be made against it with respect to such Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Stock Certificate the Merger Consideration in respect thereof pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Uni-Pixel), Merger Agreement (Uni-Pixel)
Surrender and Payment. 1.4.1. Prior to the Effective Time, BP Amoco shall appoint an agent reasonably acceptable to ARCO as exchange agent (athe "Exchange Agent") Clearwire has appointed the Exchange Agent for the purpose of exchanging Certificates for BP Amoco Depositary Shares or, if and to the Merger Consideration for:
(i) certificates representing shares extent elected by a holder of Clearwire Capital Stock (a Certificate in the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)manner provided in this Section 1.4.1, for BP Amoco Ordinary Shares in registered form. Promptly after the Closing DateEffective Time, NewCo the Surviving Corporation will send, or will cause the Exchange Agent to send, to each holder of shares record as of Clearwire Capital Stock at the Effective Time of ARCO Common Shares (other than holders of Excluded ARCO Shares) (i) a letter of transmittal transmittal, in such form as ARCO and instructions that will specify that the delivery will be effectedBP Amoco may reasonably agree, and risk of loss and title will pass, only on proper for use in effecting delivery of the Certificates or transfer of the Uncertificated ARCO Common Shares to the Exchange Agent., which letter of transmittal shall include a form of election by which each such holder may elect to receive (the "Share Election") all or any part of the Merger Consideration to which such holder is entitled in the form of BP Amoco Ordinary Shares in registered form, rather than in the form of BP Amoco Depositary Shares (such BP Amoco Ordinary Shares or BP Amoco Depositary Shares to be received by a holder being referred to in this Agreement as "BP Amoco Shares") and (ii) instructions for surrendering Certificates in exchange for the BP Amoco Shares, and any cash in lieu of fractional shares and any cash dividends or other distributions, that such holder has the right to receive pursuant to this Article I.
(b) 1.4.2. Each holder of shares of Clearwire Capital Stock will be entitled any ARCO Common Shares that have been converted into a right to receivereceive the consideration set forth in Section 1.3.2 shall, on
(i) upon surrender to the Exchange Agent of a CertificateCertificate or Certificates, together with a properly completed letter of transmittaltransmittal covering the ARCO Common Shares represented by such Certificate or Certificates, or
be entitled to receive (i) the number of whole BP Amoco Shares to which such holder is entitled in respect of such ARCO Common Shares pursuant to Section 1.3.2 (after giving effect to any Share Election made by such holder) and (ii) receipt a check in the amount (after giving effect to any required tax withholdings) of an “agent’s message” by the Exchange Agent (A) any cash in lieu of fractional shares to be paid pursuant to Section 1.6, plus (B) any cash dividends or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration distributions that the such holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stockpursuant to Section 1.4.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Atlantic Richfield Co /De), Merger Agreement (Bp Amoco PLC)
Surrender and Payment. (a) Clearwire has appointed At or prior to the Effective Time, Cal Dive shall appoint Wxxxx Fargo Bank Minnesota, N.A. or such other exchange agent reasonably acceptable to Cal Dive and the Company (the “Exchange Agent Agent”) for the purpose of exchanging payment of the Merger Consideration for:
Consideration. At or prior to the Effective Time, Cal Dive shall deposit with the Exchange Agent, in trust for the benefit of the holders of shares of Company Common Stock, (ia) cash and (b) certificates representing shares of Clearwire Capital Cal Dive Common Stock, to be paid and issued pursuant to Section 2.1(a) and Section 2.3(a) and (b), and pursuant to Section 2.5 in respect of fractional shares of Cal Dive Common Stock. Any cash and certificates representing Cal Dive Common Stock deposited with the Exchange Agent (including cash in lieu of fraction shares to be paid pursuant to Section 2.5) shall hereinafter be referred to as the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Exchange Fund.” Promptly after the Closing DateEffective Time, NewCo Cal Dive will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital Company Common Stock at immediately prior to the Effective Time Time, a letter of transmittal and instructions that will for use in such exchange (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) in such form as the Company and Cal Dive may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Exchange Agent. Exchange of any book-entry shares shall be effected in accordance with Cal Dive’s customary procedures with respect to securities represented by book entry.
(b) Each holder of shares of Clearwire Capital Company Common Stock will be entitled (including restricted shares) that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
will be entitled to receive (iii) receipt one or more shares of an “agent’s message” by the Exchange Agent Cal Dive Common Stock (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) which shall be in the case of a non-certificated book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, form unless a physical certificate is requested by requested) representing, in the aggregate, the whole number of shares of Cal Dive Common Stock, if any, that such holder or is otherwise required under applicable Law. As has the right to receive pursuant to Section 2.1 and (ii) a result check in the amount equal to the cash portion of the MergerMerger Consideration, at if any, that such holder has the right to receive pursuant to Section 2.1 and this Article II, including cash payable in lieu of fractional shares pursuant to Section 2.5. No interest shall be paid or accrued on any Merger Consideration or cash in lieu of fractional shares. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(c) If any portion of the Merger Consideration is to be paid to or registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to such payment or the payment that
(i) either registration thereof that the surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting such delivery of the payment will Merger Consideration shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of such registration in the payment to name of a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent, the Surviving Company, or Cal Dive, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve months one year after the Closing Date will Effective Time shall be returned to NewCoCal Dive upon demand, on demand. Any and any holder who has not exchanged his shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.4 prior to that date will time shall thereafter look only to NewCo Cal Dive for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those shares without any interest thereonsuch holder’s shares. Regardless Notwithstanding the foregoing, none of the preceding sentenceCompany, NewCo will not Cal Dive, or the Exchange Agent shall be liable to any holder of shares of Clearwire Capital Stock for any amounts Merger Consideration from the Exchange Fund properly paid delivered to a public official under pursuant to applicable abandoned property, escheat or similar Laws. property laws.
(f) Any amounts remaining unclaimed by holders portion of the Merger Consideration deposited with the Exchange Agent pursuant to Section 2.4 to pay for shares of Clearwire Capital Company Common Stock six years after the Closing Date (or that earlier datefor which appraisal rights shall have been perfected shall be returned to Cal Dive, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretoupon demand.
Appears in 2 contracts
Samples: Merger Agreement (Horizon Offshore Inc), Merger Agreement (Cal Dive International, Inc.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Hurricane shall designate its transfer agent, American Stock Transfer & Trust Company, or another bank or trust company reasonably satisfactory to Cyclone to act as the exchange agent hereunder (the “Exchange Agent Agent”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Cyclone Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Cyclone Stock (the “Uncertificated Shares”). At the Effective Time, Hurricane shall deposit with the Exchange Agent, to be held in trust for the holders of Cyclone Stock, stock certificates (if such shares shall be certificated) representing shares of Hurricane Stock issuable pursuant to Section 2.04 in exchange for outstanding shares of Cyclone Stock and an amount of cash sufficient to deliver to the holders of Cyclone Stock (other than the Dissenting Shares) the aggregate Merger Consideration. From time to time after the Effective Time, Hurricane shall make available to the Exchange Agent, as needed, cash in amounts that are sufficient to pay cash in lieu of fractional shares pursuant to Section 2.07 and any dividends or other distributions pursuant to Section 2.05(f), in each case, to be paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Closing DateEffective Time, NewCo will but in any event within ten (10) Business Days after the Effective Time, Hurricane shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Cyclone Stock at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Cyclone Stock will shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the such holder has a right to receive under pursuant to Section 2.52.04. The shares of Class A Common Hurricane Stock constituting the part of such Merger Consideration will Consideration, at Hurricane’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by the a holder of shares of Cyclone Stock or is otherwise required under applicable Applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Cyclone Stock will shall cease to be outstanding and each holder of Clearwire Capital Stock will thereof shall cease to have any rights with respect to the Clearwire Capital Stockthereto, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stockthereof and any dividends or other distributions payable in respect thereof in accordance with Section 2.05(f).
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After At the Effective Time, the stock transfer books of Cyclone shall be closed and thereafter there will shall be no further registration of transfers on the transfer books of Cyclone or the Surviving Corporation of the shares of Clearwire Capital StockCyclone Stock which were outstanding immediately prior to such time. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock thereof provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.05(a) that remains unclaimed by the holders of shares of Clearwire Capital Cyclone Stock twelve six months after the Closing Date will Effective Time shall be returned to NewCoHurricane, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Cyclone Stock for the Merger Consideration in accordance with this Section 2.6 before 2.05 prior to that date will time shall thereafter look only to NewCo Hurricane for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Considerationthereto, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Hurricane shall not be liable to any holder of shares of Clearwire Capital Cyclone Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Cyclone Stock six years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCoHurricane, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to securities of Hurricane 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 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 2.05. Following such surrender or transfer, Hurricane shall pay or shall cause the Exchange Agent to pay, without interest, to the Person in whose name the securities of Hurricane have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled 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 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.
Appears in 2 contracts
Samples: Merger Agreement (Hologic Inc), Merger Agreement (Cytyc Corp)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, CME shall appoint an exchange agent (who shall be the same exchange agent as contemplated in the GFI Merger Agreement or such other exchange agent reasonably acceptable to New JPI) (the "Exchange Agent Agent") for the purpose of exchanging Certificates for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly As promptly as reasonably practicable after the Closing DateEffective Time, NewCo but in no event more than five Business Days following the Effective Time, CME will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital New JPI Common Stock at as of the Effective Time Time, whose shares of New JPI Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 1.7 (Effect on Capital Stock), a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) to the Exchange Agent.
) in substantially the same form as the letter of transmittal contemplated in the GFI Merger Agreement or otherwise in such form as New JPI and CME may reasonably agree, including instructions for use in effecting the surrender of Certificates (bor effective affidavits of loss in lieu thereof) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(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 Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting exchange for the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder Consideration. At or is otherwise required under applicable Law. As a result of the Merger, at prior to the Effective Time, all shares of Clearwire Capital Stock will cease CME shall cause to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights deposited with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stock.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective TimeAgent, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect benefit of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCoNew JPI Common Stock, on demand. Any holder who has not exchanged shares of Clearwire CME 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 1.7 (Effect on Capital Stock for the Merger Consideration in accordance with this Stock) and Section 2.6 before that date will look only to NewCo for payment 2.5 (No Fractional Shares), payable upon due surrender of the Merger ConsiderationCertificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of Article I and this Article II. Following the Effective Time, and CME 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) (Dividends and Distributions). All cash and book-entry shares representing CME Class A Common Stock deposited with respect the Exchange Agent shall be referred to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.this Agreement as the
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Jersey Partners Inc.), Agreement and Plan of Merger (Jersey Partners Inc.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Republic and Allied shall appoint a mutually acceptable agent (the “Exchange Agent Agent”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing representing, immediately prior to the Effective Time, outstanding shares of Clearwire Capital Allied Common Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Allied Common Stock outstanding immediately prior to the Effective Time (the “Uncertificated Shares”). Republic shall (x) deposit with the Exchange Agent, to be held in trust for the holders of Allied Common Stock, certificates (if such shares shall be certificated) representing shares of Republic Common Stock issuable pursuant to Section 2.04 in exchange for outstanding shares of Allied Common Stock and (y) make available to the Exchange Agent, when and as needed, cash in amounts that are sufficient to pay cash in lieu of fractional shares pursuant to Section 2.07 and any dividends or other distributions pursuant to Section 2.05(f), in each case, to be paid in respect of the Certificates and the Uncertificated Shares. Promptly (but in any event within five (5) Business Days) after the Closing DateEffective Time, NewCo will Republic shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Allied Common Stock at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates (or the documentation required by Section 2.09) or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Allied Common Stock will shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittaltransmittal (or the documentation required by Section 2.09), or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the such holder has a right to receive under pursuant to Section 2.52.04 and any dividends or other distributions payable to such holder pursuant to Section 2.05(f). The shares of Class A Republic Common Stock constituting the part of such Merger Consideration will Consideration, at Republic’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by the a holder of shares of Allied Common Stock or is it otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Allied Common Stock will shall cease to be outstanding and each holder of Clearwire Capital Stock will thereof shall cease to have any rights with respect to the Clearwire Capital Stockthereto, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stockthereof and any dividends or other distributions payable pursuant to Section 2.05(f).
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer Stock Transfer Tax or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After At the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockAllied Common Stock that were outstanding prior to the Merger. If, after the Effective Time, Certificates or Uncertificated Shares are 11 presented to NewCoRepublic, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock as provided for, and in accordance with the procedures set forth, in this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.05(a) that remains unclaimed by the holders of shares of Clearwire Capital Allied Common Stock twelve (12) months after the Closing Date will Effective Time shall be returned to NewCoRepublic, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock Certificates or Uncertificated Shares, as the case may be, for the Merger Consideration in accordance with this Section 2.6 before 2.05 prior to that date will time shall thereafter look only to NewCo Republic for payment of the Merger Consideration, and any dividends and distributions distribution with respect to the Merger Considerationthereto, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Republic shall not be liable to any holder of shares of Clearwire Capital Allied Common Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Allied Common Stock six years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) will shall become, to the extent permitted by applicable Law, the property of NewCoRepublic, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Republic Common Stock with a record date after the Effective Time, and no cash payment in lieu of fractional shares as provided in Section 2.07, shall be paid to the holder of any unsurrendered Certificate or any Uncertificated Share 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 Republic have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.07 and the amount of all dividends or other distributions, payable with respect to that number of whole shares of Republic Common Stock to which such Person is entitled pursuant to Section 2.04, with a record date after the Effective Time and previously paid or payable on the date of such surrender with respect to such securities, and (ii) at the appropriate payment date, the amount of dividends or other distributions, payable with respect to that number of whole shares of Republic Common Stock to which such Person is entitled pursuant to Section 2.04, 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.
Appears in 2 contracts
Samples: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Republic Services Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the Mailing Date, CME Holdings shall appoint an exchange agent reasonably acceptable to CBOT Holdings (the “Exchange Agent Agent”) for the purpose of exchanging the Merger Consideration for:
(i) certificates Certificates representing shares of Clearwire Capital CBOT Holdings Class A Common Stock and non-certificated shares represented by book entry (the “CertificatesBook-Entry Shares”) or
(ii) uncertificated shares of Clearwire Capital Stock (for the “Uncertificated Shares”)Merger Consideration. Promptly after the Closing DateEffective Time, NewCo but in no event more than three (3) Business Days thereafter, the Surviving Entity will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital CBOT Holdings Class A Common Stock at as of the Effective Time (other than any holder which has previously and properly surrendered all of its Certificate(s) to the Exchange Agent in accordance with Section 1.10 ), a letter of transmittal and instructions that will for use in such exchange (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) in such form as CBOT Holdings and CME Holdings may reasonably agree, for use in effecting delivery of shares of CBOT Holdings Class A Common Stock to the Exchange Agent. As promptly as practicable after the Election Date (and in no event later than three (3) Business Days after the Election Date), the Exchange Agent shall determine the Actual Cash Amount and the allocation of Merger Consideration and shall notify CME Holdings of such determination (the date of such determination, the “Determination Date”). At the Effective Time, CME Holdings shall deposit with the Exchange Agent (i) the number of shares of CME Holdings Class A Common Stock (including fractional shares) to be delivered as Stock Consideration in respect of the No Election Shares and the shares of CBOT Holdings Class A Common Stock for which an election to receive stock consideration is properly made and not revoked or lost pursuant to this Section 2.1, (ii) the number of shares of CME Holdings Class A Common Stock (including fractional shares) as shall be necessary to deliver the Stock Consideration in respect of the shares of CBOT Holdings Class A Common Stock for which an election to receive the Stock Consideration is properly made and not revoked or lost pursuant to this Section 2.1, and (iii) the Available Cash Amount. CME Holdings shall also make sufficient funds available to the Exchange Agent from time to time as needed to pay cash in respect of dividends or other distributions contemplated by Section 2.1(f). Exchange of any Book-Entry Shares shall be effected in accordance with CME Holdings’ customary procedures with respect to securities represented by book entry.
(b) Each holder of shares of Clearwire Capital CBOT Holdings Class A Common Stock will be entitled that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon 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 Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right will be entitled to receive under Section 2.5. The shares (A) one or more certificates of CME Holdings Class A Common Stock constituting the Merger Consideration will (which shall be in uncertificated non-certificated book-entry form, form unless a physical certificate is requested requested) representing, in the aggregate, the number of shares of CME Holdings Class A Common Stock, if any, that such holder has the right to receive pursuant to Section 1.9 and (B) a check in the amount equal to the cash portion of the Merger Consideration, if any, that such holder has the right to receive pursuant to Section 1.9 and this Article II, including dividends and other distributions payable pursuant to Section 2.1(f). The Merger Consideration shall be paid as promptly as practicable after receipt by the holder or is otherwise required under applicable Law. As a result Exchange Agent of the MergerCertificate and letter of transmittal in accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration or on any unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, at each such Certificate shall, after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(c) If any portion of the Merger Consideration is to be paid to registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the payment that
(i) either registration thereof that the surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting such delivery of the payment will Merger Consideration shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of such registration in the payment to name of a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital CBOT Holdings Class A Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent or the Surviving Entity, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, forth in this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.1(a) that remains unclaimed by the holders of shares of Clearwire Capital CBOT Holdings Class A Common Stock twelve months one year after the Closing Date will Effective Time shall be returned to NewCothe Surviving Entity, on upon demand. Any , and any such holder who has not exchanged his or her shares of Clearwire Capital CBOT Holdings Class A Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.1 prior to that date will time shall thereafter look only to NewCo the Surviving Entity for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those shares without any interest thereonsuch holder’s shares. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will the Surviving Entity shall not be liable to any holder of shares of Clearwire Capital Stock for any amounts Merger Consideration properly paid delivered to a public official under pursuant to applicable abandoned property, escheat or similar Lawsproperty laws. Any amounts Merger Consideration remaining unclaimed by holders of shares of Clearwire Capital CBOT Holdings Class A Common Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeEntity shall, to the extent permitted by applicable Law, become the property of NewCo, the Surviving Entity 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 Holdings Class A Common Stock 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 this Section 2.1. Following such surrender, there shall be paid, without interest, to the record holder of the shares of CME Holdings Class A Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such shares of CME Holdings Class A 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 CME Holdings Class A 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 CME Holdings Class A Common Stock, all shares of CME Holdings 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.
Appears in 2 contracts
Samples: Merger Agreement (Chicago Mercantile Exchange Holdings Inc), Merger Agreement (Cbot Holdings Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Company Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Company Stock (the “Uncertificated Shares”). Subject to Section 2.03(f), Parent shall deposit, or cause to be deposited with the Exchange Agent, as needed, for the benefit of the holders of the Certificates and the Uncertificated Shares, for exchange in accordance with this Article 2, (A) certificates representing the shares of Parent Stock that constitute the stock portion of the Merger Consideration and (B) an amount of cash necessary to satisfy the cash portion of the Merger Consideration. Promptly after the Closing DateEffective Time (but not later than five Business Days after the Effective Time), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital Company Stock at as of the Effective Time a letter of transmittal (which will be in customary form and reviewed by the Company prior to delivery thereof) and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will to the Certificates or Uncertificated Shares shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in effecting the surrender of Certificates or Uncertificated Shares in exchange for the Merger Consideration.
(b) Each holder of shares of Clearwire Capital Company Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of the holder has Company Stock represented by a right to receive under Section 2.5Certificate or Uncertificated Share. The shares of Class A Common Parent Stock constituting the part of such Merger Consideration will Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Applicable Law. As a result of Until so surrendered or transferred, as the Mergercase may be, at each such Certificate or Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive such Merger Consideration and the right to receive any dividends or other distributions pursuant to Section 2.03(f). No interest shall be paid or accrued on the Merger Consideration payable in respect upon the surrender or transfer of such Certificate or Uncertificated Share. Upon payment of the Clearwire Capital StockMerger Consideration pursuant to the provisions of this Article 2, each Certificate or Certificates so surrendered shall immediately be cancelled.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) All Merger Consideration paid upon the surrender of Certificates or transfer of Uncertificated 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 Stock formerly represented by such Certificate or Uncertificated Shares. After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) and 2.03(f) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve months after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect thereto pursuant to the Merger ConsiderationSection 2.03(f), in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six two years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) 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 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 registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled 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 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. Parent shall deposit or cause the Surviving Corporation to deposit with the Exchange Agent (A) the amount of cash, if any, to be paid to holders of fractional shares pursuant to Section 2.07 as promptly as practicable after the determination of such amount pursuant to Section 2.07 and (B) the amount of any dividend or other distributions with a record date after the Effective Time and with a payment date on or prior to the date of surrender or transfer no later than the applicable payment date, which amounts shall be held for the sole benefit of the holders of the shares of Company Stock and for the sole purpose of making the payments contemplated by clause (i) of this Section 2.03(f).
(g) Any portion of the aggregate Merger Consideration made available to the Exchange Agent pursuant to Section 2.03 in respect of any Dissenting Shares shall be returned to Parent, upon demand.
(h) 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 with respect to such Company Stock, 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. Parent or the Surviving Corporation shall pay all charges and expenses of the Exchange Agent in connection with the exchange of shares for the Merger Consideration.
Appears in 2 contracts
Samples: Merger Agreement (RiskMetrics Group Inc), Merger Agreement (MSCI Inc.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent (the “Exchange Agent Agent”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Company Common Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Company Common Stock (the “Uncertificated Shares”). Promptly (and in any event within five Business Days) after the Closing DateEffective Time, NewCo will Parent shall make available to the Exchange Agent, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. Promptly (and in any event within five Business Days) after the Effective Time, Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Common Stock at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Company Common Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of the holder has Company Common Stock represented by a right to receive under Section 2.5Certificate or Uncertificated Share. The shares of Class A Parent Common Stock constituting the included in such Merger Consideration will Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by the a holder of shares of Company Common Stock or is otherwise required under applicable Applicable Law. As a result of Until so surrendered or transferred, as the Mergercase may be, at each such Certificate or Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve months after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Considerationthereto, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Company Common Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Common Stock six two years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) 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 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 registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled 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 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.
Appears in 2 contracts
Samples: Merger Agreement (Kla Tencor Corp), Merger Agreement (Ade Corp)
Surrender and Payment. (a) Clearwire has appointed the Exchange Agent for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly As promptly as practicable after the Closing DateEffective Time, NewCo will send, or will Parent shall cause the Exchange Agent to send, mail to each holder of record of one (1) or more Old Certificates representing shares of Clearwire Capital Company Class A Common Stock immediately prior to the Effective Time that have been converted at the Effective Time into the right to receive the Merger Consideration pursuant to Article I, a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will to the Old Certificates shall pass, only on upon proper delivery of the Old Certificates (or transfer affidavits of loss in lieu thereof and, if required by Parent or the Exchange Agent, the posting of a bond in a reasonable and customary amount as indemnity pursuant to Section 2.2(e)) to the Exchange Agent and which shall be in a form reasonably acceptable to Parent and the Company) and instructions for use in effecting the surrender of the Uncertificated Shares Old Certificates (or affidavits of loss in lieu thereof and, if required by Parent or the Exchange Agent, the posting of a bond in a reasonable and customary amount as indemnity pursuant to Section 2.2(e)) in exchange for the Merger Consideration set forth in Section 1.5. From and after the Effective Time, upon proper surrender of an Old Certificate or Old Certificates for exchange and cancellation to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) surrender to the Exchange Agent of a Certificate, together with a such properly completed letter of transmittal, or
duly executed, the holder of such Old Certificate or Old Certificates shall be entitled to receive in exchange therefor, as applicable, (i) a New Certificate representing that number of whole shares of Parent Common Stock and a check representing the Cash Consideration, in each case, to which such holder of Company Class A Common Stock shall have become entitled pursuant to the provisions of Article I and (ii) receipt a check representing the amount of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) any cash in the case lieu of a book-entry transfer fractional share which such holder has the right to receive in respect of Uncertificated Shares, the aggregate Merger Consideration Old Certificate or Old Certificates surrendered pursuant to the provisions of this Article II and for the amount of any dividends or distributions that the holder thereof has a the right to receive as of such time under Section 2.5, and the Old Certificate or Old Certificates so surrendered shall forthwith be cancelled. No interest will be paid or accrued on the Cash Consideration, any cash in lieu of fractional shares or dividends or other distributions payable to holders of Old Certificates. Until surrendered as contemplated by this Section 2.2, each Old Certificate shall be deemed from and after the Effective Time to represent only the right to receive, upon surrender, the Merger Consideration, any cash in lieu of fractional shares and any dividends or distributions that the holder thereof has the right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stock.
(cb) If any portion New Certificate representing shares of the Merger Consideration Parent Common Stock is to be paid to issued in a Person name other than that in which the Person in whose name the surrendered Old Certificate or the transferred Uncertificated Share Old Certificates surrendered in exchange therefor is or are registered, it will shall be a condition to of the payment that
(i) either issuance thereof that the Old Certificate or Old Certificates so surrendered Certificate will shall be properly endorsed (or will accompanied by an appropriate instrument of transfer) and otherwise be in proper form for transfer or transfer, and that the applicable Uncertificated Share will be properly transferred, and
(ii) the Person person requesting the payment will such exchange shall pay to the Exchange Agent in advance any transfer or other similar Taxes required as a result by reason of the payment to issuance of a Person New Certificate representing shares of Parent Common Stock in any name other than that of the registered holder of the Old Certificate or Uncertificated Share Old Certificates surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(dc) After Notwithstanding anything to the Effective Timecontrary contained herein, there will be no further registration of transfers of New Certificates or scrip representing fractional shares of Clearwire Capital StockParent Common Stock shall be issued upon the surrender for exchange of Old Certificates, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a shareholder of Parent. IfIn lieu of the issuance of any such fractional share, after Parent shall pay to each former stockholder of the Effective TimeCompany who otherwise would be entitled to receive such fractional share an amount in cash (rounded to the nearest cent) determined by multiplying (i) the volume-weighted average price per share of Parent Common Stock on the New York Stock Exchange (the “NYSE”) as such daily volume-weighted average price per share is reported by Bloomberg L.P. (or, Certificates or Uncertificated Shares are presented to NewCoif such information is no longer reported by Bloomberg L.P., they will be canceled as reported by a comparable internationally recognized source mutually determined by Parent and exchanged the Company) calculated for the Merger Consideration payable in respect five (5) consecutive trading days immediately preceding (but not including) the Closing Date (the “Parent Stock Price”) by (ii) the fraction of the Clearwire Capital Stock provided for, and in accordance a share (with the procedures set forth, result rounded to the nearest thousandth when expressed in this Article 2decimal form) of Parent Common Stock which such holder would otherwise be entitled to receive pursuant to Section 1.5.
(ed) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders stockholders of shares of Clearwire Capital Stock twelve months the Company for one (1) year after the Closing Date will Effective Time shall be returned paid to NewCo, on demandthe Surviving Corporation. Any holder former stockholders of the Company who has have not theretofore exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with their Old Certificates pursuant to this Section 2.6 before that date will Article II shall thereafter look only to NewCo Parent and the Surviving Corporation for payment of the Merger Consideration, Consideration and cash in lieu of any dividends and distributions with respect to the Merger Considerationfractional shares, in respect of those shares each case, without any interest thereon. Regardless Notwithstanding the foregoing, none of Parent, Merger Sub, the preceding sentenceCompany, NewCo will not the Surviving Corporation, the Exchange Agent or any other person shall be liable to any former holder of shares of Clearwire Capital Company Class A Common Stock for any amounts properly paid amount delivered in good faith to a public official under pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders If any Old Certificate (or affidavit of shares of Clearwire Capital Stock six loss in lieu thereof) has not been surrendered prior to seven years after the Closing Date (Effective Time, or that immediately prior to such earlier datedate on which any shares of Parent Common Stock, immediately before the time when the amounts any Cash Consideration, any cash in lieu of fractional share of Parent Common Stock or any dividends or distributions with respect to shares of Parent Common Stock in respect of such Old Certificate would otherwise escheat to or become the property of any Governmental Authority) will becomeEntity, any such shares, cash, dividends or distributions in respect of such Old Certificate, to the extent permitted by applicable Law, shall become the property of NewCoParent, free and clear of any all claims or interest interests of any Person person previously entitled thereto.
(e) In the event any Old Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Old Certificate to be lost, stolen or destroyed and, if required by Parent or the Exchange Agent, the posting by such person of a bond in such amount as Parent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Old Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Old Certificate the Merger Consideration and any cash in lieu of fractional shares deliverable in respect thereof pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Fidelity National Information Services, Inc.), Merger Agreement (Worldpay, Inc.)
Surrender and Payment. (a) Clearwire has appointed Prior to the record date for the Company Stockholder Meeting, Parent shall appoint an agent (the “Exchange Agent Agent”) reasonably acceptable to the Company for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Company Stock (the “Certificates”) or
and (ii) uncertificated shares of Clearwire Capital Company Stock (the “Uncertificated Shares”)) and for the purpose of receiving Election Forms and determining, in accordance with Section 2.02, the form of the Merger Consideration to be received by each holder of Shares. No later than one Business Day after the Effective Time, Parent shall deposit with the Exchange Agent the cash portion of the aggregate Merger Consideration. In addition, Parent shall make available to the Exchange Agent, as needed, the Parent Stock portion of the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares and any cash required to be paid in respect of fractional shares of Parent Stock pursuant to Section 2.07. Promptly after the Closing DateEffective Time, NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Stock at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Company Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of the holder has Company Stock represented by a right to receive under Section 2.5Certificate or Uncertificated Share. The shares of Class A Common Parent Stock constituting the part of such Merger Consideration will Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by the a holder of shares of Company Stock or is otherwise required under applicable Applicable Law. As a result of Until so surrendered or transferred, as the Mergercase may be, at each such Certificate or Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration payable Consideration, including any cash in respect lieu of any fractional share of Parent Stock pursuant to Section 2.07, and the Clearwire Capital Stockright to receive any dividends or other distributions pursuant to Section 2.03(f), in each case to be paid or issued in accordance with Section 2.03, without interest.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the aggregate Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve months one year after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect thereto pursuant to the Merger ConsiderationSection 2.03(f), in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six two years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) 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 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 registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled 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 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.
Appears in 2 contracts
Samples: Merger Agreement (Switch & Data Facilities Company, Inc.), Merger Agreement (Equinix Inc)
Surrender and Payment. (a) Clearwire has appointed At or prior to the Effective Time, Parent shall make available to the Exchange Agent (i) evidence of the Parent Class A Common Stock in book-entry form (and/or certificates representing the shares of Parent Class A Common Stock at Parent’s election) sufficient to deliver the aggregate Stock Consideration, (ii) immediately available funds equal to any dividends or distributions payable in accordance with Section 2.04(c), (iii) immediately available funds equal to the aggregate Cash Consideration, and (iv) cash in lieu of any fractional shares to be issued pursuant to Section 2.02 and paid pursuant to Section 2.04(f) in exchange for outstanding shares of Company Stock (other than Dissenting Shares) (such cash and book-entry or certificates for shares of Parent Class A Common Stock collectively being referred to as the “Exchange Fund”). Such cash funds may be invested by the Exchange Agent as directed by Parent; provided that (A) no such investment or losses thereon shall affect the Merger Consideration or other amounts payable hereunder, (B) if, for any reason (including if Dissenting Shares cease to be Dissenting Shares or if a dividend or distribution payable in accordance with Section 2.04(c) is paid), the cash and the evidence of book-entry or certificates for shares of Parent Class A Common Stock in the Exchange Fund becomes insufficient to make the payments contemplated by this Article 2, then Parent shall promptly provide additional cash, evidence of book-entry or certificates for shares of Parent Class A Common Stock, as applicable to the Exchange Agent for the purpose benefit of exchanging the Merger Consideration for:former stockholders of the Company sufficient to make the payments contemplated by this Article 2 and (C) such investments shall only be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States 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. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as Parent directs.
(ib) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing DateEffective Time (but not later than three (3) Business Days thereafter), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Stock at the Effective Time who did not properly complete and timely submit and not revoke a Form of Election a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange Agent.
) and shall be in such form and have such other or different provisions as Parent shall reasonably designate for use in such exchange. Upon proper surrender of the Certificates for exchange (bor affidavits of loss in lieu thereof) Each holder and cancellation or transfer of shares of Clearwire Capital Stock will be entitled to receive, on
(i) surrender the Uncertificated Shares to the Exchange Agent of a CertificateAgent, together with a such properly completed letter of transmittal, or
the holder of such Certificates or Uncertificated Shares shall be entitled to receive in exchange therefor, as applicable, (iii) receipt of an “agent’s message” by the Exchange Agent (a certificate or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer representing the number of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The whole shares of Parent Class A Common Stock constituting to which such holder of Company Stock shall have become entitled pursuant to the Merger provisions of Article 2, (ii) a check representing the amount of the aggregate Cash Consideration (rounded up to the nearest whole cent) and any cash in lieu of fractional shares which such holder has the right to receive in respect of the Certificates or Uncertificated Shares surrendered pursuant to the provisions of this Article 2, and (iii) a check representing the amount of any dividends or distributions then payable pursuant to Section 2.04(c), and the Certificates or Uncertificated Shares so surrendered shall forthwith be canceled. No interest will be paid or accrued on any cash in uncertificated book-entry formlieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates or Uncertificated Shares. Until so surrendered, unless a physical certificate is requested by the holder each Certificate or is otherwise required under applicable Law. As a result of the Merger, at Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration payable Consideration, together with any cash in respect lieu of fractional shares and any dividends or distributions as contemplated by Section 2.04(c). The Parent, the Clearwire Capital Company and the Exchange Agent may agree on transfer procedures in addition to or different from the procedures set forth above in order to effect the transfer and conversion of Company Stock.
(c) No dividends or other distributions declared with respect to Parent Class A Common Stock shall be paid to the holder of any Certificate that has not been surrendered or Uncertificated Share that has not been transferred until the holder thereof shall surrender such Certificate or transfer such Uncertificated Share in accordance with this Article 2. After the surrender of a Certificate or transfer of an Uncertificated Share in accordance with this Article 2, the record holder thereof shall be entitled to receive (i) the amount of dividends or other distributions with a record date after the Effective Time theretofore paid, without any interest thereon, with respect to the whole shares of Parent Class A Common Stock represented by such Certificate or Uncertificated Share 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 surrender and a payment date subsequent to surrender, with respect to shares of Parent Class A Common Stock represented by such Certificate or Uncertificated Share.
(d) If any portion certificate representing shares of the Merger Parent Class A Common Stock is to be issued in, or any Cash Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
accompanied by all documents reasonably required to evidence and effect such transfer, and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(de) The shares of Parent Class A Common Stock delivered and cash paid in accordance with the terms of this Article 2 upon conversion of any shares of the Company Stock shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to such shares of the Company Stock. From and after the Effective Time, subject to Delaware Law in the case of Dissenting Shares, all holders of Certificates and Uncertificated Shares shall cease to have any rights as stockholders of the Company other than the right to receive the Merger Consideration into which the shares represented by such Certificates or Uncertificated Shares have been converted pursuant to this Agreement and any funds payable in accordance with Section 2.04(c) upon the surrender of such Certificate or Uncertificated Share in accordance with this Article 2. After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 22 plus any funds payable in accordance with Section 2.04(c).
(ef) Notwithstanding anything to the contrary contained in this Agreement, no certificates or scrip representing fractional shares of Parent Class A Common Stock shall be issued upon the surrender of Certificates for exchange or transfer of Uncertificated Shares, no dividend or distribution with respect to Parent Class A Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu of the issuance of any such fractional share, Parent shall pay to each former stockholder of the Company who otherwise would be entitled to receive such fractional share an amount in cash, without interest (rounded to the nearest cent) determined by multiplying (i) the Parent Trading Price by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of Parent Class A Common Stock to which such holder would otherwise be entitled to receive pursuant to Section 2.02.
(g) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the former holders of shares of Clearwire Capital Company Stock twelve months after as of the Closing Date will one year anniversary of the Effective Time shall be returned to NewCo, on Parent upon demand. Any holder former stockholders of the Company who has have not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance theretofore complied with this Section 2.6 before that date will Article 2 shall thereafter look only to NewCo Parent (subject to abandoned property, escheat or other similar Applicable Laws), as general creditors thereof, for payment of the Merger Consideration, cash in lieu of any fractional shares and any unpaid dividends and distributions payable in accordance with respect to the Merger ConsiderationSection 2.04(c), in respect of those shares each share of Company Stock, as the case may be, such stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Regardless Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the preceding sentenceCompany, NewCo will not the Exchange Agent or any other person shall be liable to any former holder of shares of Clearwire Capital Company Stock for any amounts properly paid amount delivered in good faith to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders Notwithstanding any other provision of shares this Agreement, any portion of Clearwire Capital Stock six years after the Closing Date (Merger Consideration or the cash to be paid in accordance with this Article 2 that earlier dateremains undistributed to any former holder of Company Stock, as of immediately before prior to the time when date on which the amounts Merger Consideration or such cash that would otherwise escheat to or become the property of any Governmental Authority) will become, shall, to the extent permitted by applicable Applicable Law, become the property of NewCothe Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Carmike Cinemas Inc), Agreement and Plan of Merger (Amc Entertainment Holdings, Inc.)
Surrender and Payment. (a) Clearwire has appointed Upon surrender to Purchaser by each of the Exchange Agent for Shareholders of all of the purpose Certificates representing shares of exchanging Stock owned of record by such Shareholder immediately prior to the Merger Consideration for:
Effective Time (or an affidavit declaring such Certificates lost or stolen in a form reasonably acceptable to Purchaser and an indemnity bond issued by a commercial surety company in a form and amount reasonably acceptable to Purchaser): (i) certificates representing shares Purchaser will deliver to each Shareholder on behalf of Clearwire Capital the Surviving Corporation an amount in cash equal to the Initial Percentage of the Per Share Merger Consideration with respect to each share of Stock (the “Certificates”) or
represented by such Shareholder's Certificates and (ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing Date, NewCo Parent will send, or will cause the Exchange Agent to send, deliver to each holder Shareholder on behalf of shares the Surviving Corporation a promissory note in the form of Clearwire Capital Stock at Exhibit D. Each of the Effective Time a letter of transmittal Xxxxxx Trusts expressly acknowledges and instructions that will specify agrees that the delivery will amount of cash delivered pursuant to this Section 2.3(a) shall be effected, and risk of loss and title will pass, only on proper delivery less than the Initial Percentage of the Certificates or transfer Per Share Merger Consideration (if the CompressAR Net Assets are purchased by Newco) in order to reflect the payment for the CompressAR Net Assets pursuant to Section 7.12. Each of the Uncertificated Shares Semlers, the Xxxxxx Trusts, Parent and Purchaser expressly acknowledges and agrees that the full amount of the Shareholder Indebtedness shall be satisfied in full through offset of the amounts payable under the promissory notes issuable to each of the Exchange AgentXxxxxx Trusts pursuant to this Section 2.3(a) for each promissory note in an amount equal to fifty percent (50%) of the full amount of the Shareholder Indebtedness.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(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 Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at After the Effective Time, each Certificate shall, until surrendered, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Per Share Merger Consideration payable in respect of the Clearwire Capital Stockas provided herein.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockStock outstanding prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares certificates representing shares of Stock are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Per Share Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, forth in this Article 2II.
(ed) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Surviving Corporation that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve six (6) months after the Closing Date will be returned to NewCoEffective Time shall remain with the Surviving Corporation, on demand. Any and any such holder who has not exchanged his shares of Clearwire Capital Stock for the Per Share Merger Consideration in accordance with this Section 2.6 before Article II prior to that date will time shall thereafter look only to NewCo the Surviving Corporation for payment of the Per Share Merger Consideration in respect of his shares, and the Surviving Corporation shall be obligated to pay such Per Share Merger Consideration, and any dividends and distributions with respect but such holder shall have no greater right against the Surviving Corporation than may be accorded to general creditors under applicable law. Notwithstanding the Merger Considerationforegoing, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will Surviving Corporation shall not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly amount paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawsproperty laws. Any amounts portion of the funds remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, as of a date which is immediately before the prior to such time when the amounts as such portion would otherwise escheat to or become property of any Governmental Authority) will becomegovernmental entity shall, to the extent permitted by applicable Lawlaw, become the property of NewCo, the Surviving Corporation free and clear of any claims claim or interest of any Person person previously entitled thereto.
(e) On the Final Payment Date, Parent shall deposit with the Surviving Corporation an amount of cash sufficient to pay in full the promissory notes delivered to the Shareholders pursuant to Section 2.3(a) and amounts for the initial cash payment for shares of Stock not tendered as of the Final Payment Date, if any. Surviving Corporation shall, for a period of six months following the Closing Date, or until such time as all promissory notes issued hereunder have been fully paid and retired, maintain sufficient working capital to pay the aggregate sum due and owing under all outstanding promissory notes issued hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Alaris Medical Inc), Merger Agreement (Alaris Medical Systems Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, CME shall appoint an exchange agent (who shall be the same exchange agent as contemplated in the GFI Merger Agreement or such other exchange agent reasonably acceptable to New JPI) (the “Exchange Agent Agent”) for the purpose of exchanging Certificates for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly As promptly as reasonably practicable after the Closing DateEffective Time, NewCo but in no event more than five Business Days following the Effective Time, CME will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital New JPI Common Stock at as of the Effective Time Time, whose shares of New JPI Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 1.7 (Effect on Capital Stock), a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of loss in lieu thereof) to the Exchange Agent) in substantially the same form as the letter of transmittal contemplated in the GFI Merger Agreement or otherwise in such form as New JPI and CME may reasonably agree, 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 or prior to the Effective Time, CME shall cause to be deposited with the Exchange Agent, for the benefit of the Uncertificated Shares holders of shares of New JPI Common Stock, shares of CME 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 1.7 (Effect on Capital Stock) 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 this Article II. Following the Effective Time, CME 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) (Dividends and Distributions). All cash and book-entry shares representing CME Class A Common Stock deposited with the Exchange Agent shall be referred to in this Agreement as the “Exchange Fund.” The Exchange Agent shall deliver the Merger Consideration contemplated to be issued pursuant to Section 1.7 (Effect on Capital Stock) 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 in short-term direct obligations of the U.S. or short-term obligations for which the full faith and credit of the U.S. is pledged to provide for payment of all principal and interest (or funds that invest in such obligations); provided that no gain or loss thereon shall affect the amounts payable to the holders of New JPI Common Stock pursuant to this Agreement. If for any reason (including losses) the cash in the Exchange Fund shall be insufficient to satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, CME shall promptly deposit cash into the Exchange 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 the property of, and paid to, CME. CME shall be responsible for all fees and expenses of the Exchange Agent.
(b) Each holder of shares of Clearwire Capital New JPI Common Stock will be entitled that have been converted into the right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent (or other evidenceAgent, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right will be entitled to receive under Section 2.5. The in exchange therefor (i) the number of shares of CME Class A Common Stock constituting the Merger Consideration will (which shall be in uncertificated non-certificated book-entry form, form unless a physical certificate is requested requested) representing, in the aggregate, the whole number of shares of CME 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) (Dividends and Distributions) (less any required Tax withholding), in each case pursuant to Section 1.7 (Effect on Capital Stock) and this Article II. The Merger Consideration shall be paid as promptly as practicable after receipt by the holder or is otherwise required under applicable Law. As a result Exchange Agent of the MergerCertificate and letter of transmittal in accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration, at cash in lieu of fractional shares or unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive such Merger Consideration, cash in lieu of any fractional shares and any unpaid dividends and distributions. Notwithstanding the foregoing, any Merger Consideration payable to be subject to the Pledge Agreement shall be issued and registered as provided in respect of the Clearwire Capital StockPledge Agreement.
(c) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the of such payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or Uncertificated Share shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. 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 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 Certificate or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital New JPI Common Stock. From and after the Effective Time, the holders of Certificates representing shares of New JPI Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of New JPI Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent or CME, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in Article I and this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital New JPI Common Stock twelve months one year after the Closing Date will Effective Time shall be returned to NewCoCME, on demand. Any and any such holder who has not exchanged his or her shares of Clearwire Capital New JPI Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.1 prior to that date will time shall thereafter look only to NewCo CME, and CME shall remain liable, for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such holder’s shares without any interest thereonof New JPI Common Stock. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will not neither CME, Xxxxxx Xxx 0, Xxxxxx Xxx 0, XXX nor New JPI shall be liable to any holder of shares of Clearwire Capital New JPI Common Stock for any amounts properly paid Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions delivered to a public official under any Governmental Entity pursuant to applicable abandoned property, escheat or similar property Laws. Any amounts Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions remaining unclaimed by holders of shares of Clearwire Capital New JPI Common Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the as such amounts would otherwise escheat to or become the property of any Governmental Authority) will becomeEntity shall, to the extent permitted by applicable Law, become the property of NewCo, CME 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 Class A 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 2.1. Following such surrender, subject to the effect of escheat (in accordance with Section 2.1(e)), Tax or other applicable Law, there shall be paid, without interest, to the record holder of the shares of CME Class A Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such shares of CME Class A 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 CME Class A 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 CME Class A Common Stock, all shares of CME 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) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.1 to pay for shares of New JPI Common Stock for which appraisal rights shall have been perfected shall be returned to CME, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Cme Group Inc.), Merger Agreement (GFI Group Inc.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Company Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Company Stock (the “Uncertificated Shares”). At or prior to the Effective Time, Parent shall make available to the Exchange Agent the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. Such funds may be invested by the Exchange Agent as directed by Parent; 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 stockholders 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 90 days or guaranteed by the United States of America and backed by the full faith and credit of the United States 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. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as Parent directs. Promptly after the Closing DateEffective Time, NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares record of Clearwire Capital Stock Certificates or Uncertificated Shares at the Effective Time Time, other than shares described in Section 2.02(b) or Section 2.02(c), a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Company Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and duly executed letter of transmittaltransmittal and such other documents as may be reasonably requested by the Exchange Agent, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result respect of the MergerCompany Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, at as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, forth in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve six months after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretolaws.
Appears in 2 contracts
Samples: Merger Agreement (Hanesbrands Inc.), Merger Agreement (Maidenform Brands, Inc.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent will appoint an exchange agent reasonably acceptable to the Target (the “Exchange Agent Agent”) to act as the agent for the purpose of exchanging for the Merger Consideration for:
Consideration, to the extent entitled thereto: (i) certificates representing the Certificates, or (ii) book-entry shares which immediately prior to the Effective Time represented the shares of Clearwire Capital Target Common Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Book-Entry Shares”). On and after the Effective Time, Parent will deposit, or cause the Surviving Corporation to deposit, (x) with the Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable in respect of all of the shares of Target Common Stock outstanding immediately prior to the Effective Time (other than the Cancelled Shares, the Accepted Shares and the Non-Tendered Target Restricted Stock Awards), and (y) with the Surviving Corporation, sufficient funds to pay the Option Consideration (less any Taxes required to be withheld in accordance with Section 4.05) (collectively, the “Payment Fund”) in amounts and at the times necessary for such payments, and (z) with the Exchange Agent, an amount sufficient to pay the fees and expenses of the Exchange Agent. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares of Target Common Stock (other than Non-Tendered Target Restricted Stock Awards) will be entitled under Section 4.01(b), Parent will take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under Section 4.01(b), and Parent and the Surviving Corporation will in any event be liable for the payment thereof. The Payment Fund will not be used for any other purpose. The Surviving Corporation will pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Target Common Stock for the Merger Consideration. Promptly after the Closing DateEffective Time, NewCo Parent will send, or will cause the Exchange Agent to send, to each record holder of shares of Clearwire Capital Target Common Stock (other than Non-Tendered Target Restricted Stock Awards) at the Effective Time Time, a letter of transmittal and instructions that (which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Agent) for use in such exchange.
(b) Each Subject to Section 4.07(c), each holder of shares of Clearwire Capital Target Common Stock that have been converted into the right to receive the Merger Consideration will be entitled to receive, on
receive the Merger Consideration in respect of the Target Common Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or
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 a bookBook-entry transfer of Uncertificated Entry Shares. Until so surrendered or transferred, as the aggregate Merger Consideration that case may be, and subject to the holder has a right to receive under terms set forth in Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration 4.03 and Section 4.07(c), each such Certificate or Book-Entry Share, as applicable, will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration payable in respect thereof. No interest will be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Clearwire Capital StockMerger Consideration pursuant to the provisions of this Article IV, each Certificate or Certificates so surrendered will immediately be cancelled.
(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 or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it will be a condition to the such payment that
that (i) either the surrendered such Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated such Book-Entry Share will be properly transferred, and
and (ii) the Person requesting the such payment will pay to the Exchange Agent any transfer or other Taxes Tax required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof will 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 will be no further registration of transfers of shares of Clearwire Capital StockTarget Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to NewCothe Surviving Corporation, they will be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2IV.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Payment Fund that remains unclaimed by the holders of shares of Clearwire Capital Target Common Stock twelve (12) months after the Closing Date Effective Time will be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Target Common Stock for the Merger Consideration in accordance with this Section 2.6 before 4.02 prior to that date time will thereafter look only to NewCo Parent for payment of the Merger Consideration. Notwithstanding the foregoing, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Target Common Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by such holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority) will Entity shall become, to the extent permitted by applicable Law, the property of NewCoParent or its designee, free and clear of any all claims or interest of any Person previously entitled thereto.
(f) After the Effective Time, any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares will be returned to Parent, upon demand.
(g) The Exchange Agent shall invest all cash included in the Payment Fund as reasonably directed by Parent; provided that any investment of such cash shall be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the United States government. Any interest and other income resulting from such investments shall become a part of the Payment Fund, and any amounts in excess of the aggregate amount payable pursuant to Section 4.01(b) shall be paid to the Surviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (Enernoc Inc), Merger Agreement (World Energy Solutions, Inc.)
Surrender and Payment. (a) Clearwire has appointed At least three Business Days prior to the Closing Date, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement, reasonably acceptable to the Company, with the Exchange Agent for the purpose of exchanging for the Merger Consideration for:
as promptly as practicable after the Effective Time (i) certificates representing shares of Clearwire Capital Stock Company Common Shares (the “Certificates,” and such underlying shares, “Certificated Shares”) or
or (ii) uncertificated shares of Clearwire Capital Stock Company Common Shares (the “Uncertificated Shares”). Promptly At or prior to the Effective Time, Parent shall make available to the Exchange Agent the aggregate Merger Consideration to be paid in respect of the Certificated Shares and the Uncertificated Shares. Such cash may be invested by the Exchange Agent as directed by Pxxxxx; provided (i) that such investments must be in short-term obligations of the United States with maturities of no more than thirty days or guaranteed by the United States and backed by the full faith and credit of the United States or in commercial paper obligations rated A-1 or P-1 or better by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, (ii) no such investment will relieve Parent or the Exchange Agent from making the payments required by this Article 2 and (iii) no such investment will have maturities that could prevent or delay payments to be made pursuant to this Agreement. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as Parent directs. No loss incurred with respect to such investments will decrease the amounts payable pursuant to this Agreement. In the event that the amount of cash held by the Exchange Agent is insufficient to pay the aggregate Merger Consideration, Parent will promptly deposit, or cause to be deposited, additional funds with the Exchange Agent in an amount which is equal to the deficiency in the amount required to make all such payments pursuant to Section 2.03(b). The aggregate Merger Consideration as so deposited with the Exchange Agent will not be used for any purpose other than to fund payments pursuant to Section 2.03(b), except as expressly provided for in this Agreement.
(b) As promptly as practicable after the Closing DateEffective Time (but no later than three Business Days thereafter), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Company Common Shares at the Effective Time a letter of transmittal and instructions that (in each case, which will be in a form reasonably acceptable for the Company and finalized prior to the Effective Time, and which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates (or affidavits of loss in lieu thereof pursuant to Section 2.08) or transfer of the Uncertificated Shares to the Exchange Agent.
(b) for use in such exchange. Each holder of shares of Clearwire Capital Stock Company Common Shares that have been converted into the right to receive the Merger Consideration will be entitled to receive, on
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 Exchange Agent Certificate (or other evidence, if any, affidavits of transfer as the Exchange Agent may reasonably request) loss in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right lieu thereof pursuant to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stock.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.Section
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Exchange Agent Effective Time, MAI shall appoint its stock transfer agent as agent (the "EXCHANGE AGENT") for the purpose of exchanging certificates representing Shares for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly after the Closing DateEffective Time (but in any event within five (5) business days thereafter), NewCo MAI will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Shares at the Effective Time (i) a letter of transmittal and instructions that will for use in such exchange (which shall specify that delivery of the delivery will Merger Consideration shall be effected, and risk of loss and title will to the certificates representing DHS Common Stock shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent), and (ii) instructions for use in effecting the surrender of the certificates representing Shares in exchange for the certificates representing MAI Common Stock constituting Merger Consideration. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of certificates theretofore representing Shares for any amount which may be required to be paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
(b) Each holder of shares of Clearwire Capital Stock will be entitled Shares that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Shares, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated transmittal covering such Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right entitled to receive the Merger Consideration payable in respect of such Shares and any dividends payable pursuant to Section 1.03(f). Until so surrendered, each such certificate shall, after the Clearwire Capital StockEffective Time, represent for all purposes only the right to receive the Merger Consideration and any dividends payable pursuant to Section 1.03(f).
(c) If any portion of the certificate representing Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment delivered to a Person other than the registered holder of the Certificate Shares represented by the certificate or Uncertificated Share certificates surrendered in exchange therefor, it shall be a condition to the issuance of such certificate evidencing MAI Common Stock 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 payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of shares of MAI Common Stock to a Person other than the registered holder of such Shares represented by the certificate or certificates so surrendered or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payableapplicable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares Shares on the stock transfer book of Clearwire Capital StockDHS. If, after the Effective Time, Certificates or Uncertificated certificates representing Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 2.I.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months Shares one (1) year after the Closing Date will Effective Time shall be returned to NewCoMAI, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock his Shares for the Merger Consideration in accordance with this Section 2.6 before 1.03 prior to that date will time shall thereafter look only to NewCo MAI for payment of the Merger Consideration. Notwithstanding the foregoing, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will MAI shall not be liable to any holder of shares of Clearwire Capital Stock Shares for any amounts properly amount paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawsproperty laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six Shares seven (7) years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeshall, to the extent permitted by applicable Lawlaw, become the property of NewCo, MAI free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to MAI Common Stock issued in the Merger shall be paid to the holder of any unsurrendered certificates representing Shares until such certificates are surrendered as provided in this Section 1.03. Subject to the effect of applicable laws, following the surrender of such certificates, there shall be paid, without interest, to the record holder of the MAI Common Stock issued in exchange therefor at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time payable prior to or on the date of such surrender with respect to such whole shares of MAI Common Stock and not previously paid, less the amount of any withholding taxes which may be required thereon.
(g) In the event that any certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit (containing a standard form of indemnity) of the fact by the person claiming such certificate to be lost, stolen or destroyed, MAI will, after the Effective Time, issue in exchange for such lost, stolen or destroyed certificate the certificate evidencing shares of MAI Common Stock deliverable in respect thereof, as determined in accordance with this Article I. When authorizing such issue of the certificate of shares of MAI Common Stock in exchange therefor, MAI may, in its discretion and as a condition precedent to the issuance thereof, require (unless such requirement is waived by Gary Xxxx xx Brad Xxxxxx) xxe owner of such lost, stolen or destroyed certificate (unless such owner is an institutional investor) to give MAI x xxxx xx such sum as it may direct as indemnity against any claim that may be made against MAI with respect to the certificate alleged to have been lost, stolen or destroyed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Medical Alliance Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Dai-ichi will appoint a U.S. bank or trust company reasonably acceptable to Protective (the “Exchange Agent Agent”) for the purpose of exchanging the Certificates for Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly As soon as reasonably practicable after the Closing DateEffective Time, NewCo but in no event more than two Business Days following the Effective Time, Dai-ichi will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital Common Stock at as of the Effective Time Time, whose shares of Common Stock were converted into the right to receive the Merger Consideration, a letter of transmittal and instructions that (which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) to the Exchange Agent) in such form as Protective and Dai-ichi may reasonably agree, 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.
(b) At or prior to the Effective Time, Dai-ichi will cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of shares of Common Stock, an amount of cash in United States dollars sufficient to make the payments contemplated by Section 2.06, payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article III. All cash deposited with the Exchange Agent is referred to in this Agreement as the “Exchange Fund.” The Exchange Agent will, pursuant to irrevocable instructions, deliver the appropriate Merger Consideration 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 Dai-ichi; provided that no such investment or losses thereon will affect the Merger Consideration payable to holders of shares of Common Stock entitled to receive such consideration and Dai-ichi will promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of shares of Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments will be the property of, and paid to, Dai-ichi.
(c) Each holder of shares of Clearwire Capital Common Stock will be entitled that have been converted into the right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor a check in the amount, if any, that such holder has the right to receive in cash pursuant to Section 2.06 and this Article III. The Merger Consideration will be paid as promptly as practicable (by mail or
(ii, to the extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of a Certificate) after receipt of an “agent’s message” by the Exchange Agent (of the Certificate and letter of transmittal in accordance with the foregoing. No interest will be paid or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate accrued on any Merger Consideration that the holder has a right or on any unpaid dividends and distributions payable to receive under Section 2.5. The shares holders of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital StockCertificates.
(cd) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the of such payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) that the Person requesting the such payment will pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or Uncertificated Share will establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. 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 will be a condition to the registration thereof that the surrendered Certificate will be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the 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 Certificate or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(de) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital StockCommon Stock outstanding prior to the Effective Time other than as provided for in Section 2.06(d). From and after the Effective Time, the holders of Certificates representing shares of Common Stock outstanding immediately prior to the Effective Time will cease to have any rights with respect to such shares of Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent or Dai-ichi, they will be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, forth in Article II and this Article III. Notwithstanding anything to the contrary contained in this Article 2Agreement, the 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 Protective with respect to shares of Common Stock in accordance with the terms of this Agreement prior to the Effective Time which remain unpaid at the Effective Time.
(ef) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital Common Stock twelve months one year after the Closing Date Effective Time will be returned to NewCoDai-ichi, on upon demand. Any , and any such holder who has not exchanged his or her shares of Clearwire Capital Common Stock for the Merger Consideration in accordance with this Section 2.6 before Article III prior to that date time will thereafter look only to NewCo Dai-ichi for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such holder’s shares without any interest thereon. Regardless of Common Stock.
(g) Neither Dai-ichi, the preceding sentence, NewCo Surviving Corporation nor the Exchange Agent will not be liable to any former holder of shares of Clearwire Capital Common Stock for any amounts properly paid portion of the Merger Consideration delivered to a public official under any Government Authority pursuant to any applicable abandoned property, escheat or similar LawsLaw. Any amounts remaining unclaimed by holders In the event any Certificate has not been surrendered prior to the date as of shares of Clearwire Capital Stock six years after which such Certificate or the Closing Date (or that earlier date, immediately before Merger Consideration payable upon the time when the amounts would otherwise escheat surrender thereof escheats to or become otherwise becomes the property of any Governmental Authority) , Dai-ichi, the Surviving Corporation and the Exchange Agent will become, be permitted to comply with such Laws and the Merger Consideration otherwise payable upon the surrender of such Certificate 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 Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretosuch Certificate.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, DHS shall appoint American Stock Transfer & Trust Company as agent (the "Exchange Agent Agent") for the purpose of exchanging certificates representing Shares for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly after the Closing DateEffective Time (but in any event within five (5) business days thereafter), NewCo DHS will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Shares at the Effective Time (i) a letter of transmittal and instructions that will for use in such exchange (which shall specify that delivery of the delivery will Merger Consideration shall be effected, and risk of loss and title will to the certificates representing MAI Common Stock shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent), and (ii) instructions for use in effecting the surrender of the certificates representing Shares in exchange for the certificates representing DHS Common Stock constituting Merger Consideration. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of certificates theretofore representing Shares for any amount which may be required to be paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
(b) Each holder of shares of Clearwire Capital Stock will be entitled Shares that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Shares, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated transmittal covering such Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right entitled to receive the Merger Consideration payable in respect of such Shares and any dividends payable pursuant to Section 1.03(f). Until so surrendered, each such certificate shall, after the Clearwire Capital StockEffective Time, represent for all purposes only the right to receive the Merger Consideration and any dividends payable pursuant to Section 1.03(f).
(c) If any portion of the certificate representing Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment delivered to a Person other than the registered holder of the Certificate Shares represented by the certificate or Uncertificated Share certificates surrendered in exchange therefor, it shall be a condition to the issuance of such certificate evidencing DHS Common Stock 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 payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of shares of DHS Common Stock to a Person other than the registered holder of such Shares represented by the certificate or certificates so surrendered or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payableapplicable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares Shares on the stock transfer book of Clearwire Capital StockMAI. If, after the Effective Time, Certificates or Uncertificated certificates representing Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 2.I.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months Shares one (1) year after the Closing Date will Effective Time shall be returned to NewCoDHS, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock his Shares for the Merger Consideration in accordance with this Section 2.6 before 1.03 prior to that date will time shall thereafter look only to NewCo DHS for payment of the Merger Consideration. Notwithstanding the foregoing, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will DHS shall not be liable to any holder of shares of Clearwire Capital Stock Shares for any amounts properly amount paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawsproperty laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six Shares seven (7) years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeshall, to the extent permitted by applicable Lawlaw, become the property of NewCo, DHS free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to DHS Common Stock issued in the Merger shall be paid to the holder of any unsurrendered certificates representing Shares until such certificates are surrendered as provided in this Section 1.03. Subject to the effect of applicable laws, following the surrender of such certificates, there shall be paid, without interest, to the record holder of the DHS Common Stock issued in exchange therefor at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time payable prior to or on the date of such surrender with respect to such whole shares of DHS Common Stock and not previously paid, less the amount of any withholding taxes which may be required thereon.
(g) In the event that any certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit (containing a standard form of indemnity) of the fact by the person claiming such certificate to be lost, stolen or destroyed, DHS will, after the Effective Time, issue in exchange for such lost, stolen or destroyed certificate the certificate evidencing shares of DHS Common Stock deliverable in respect thereof, as determined in accordance with this Article I. When authorizing such issue of the certificate of shares of DHS Common Stock in exchange therefor, DHS may, in its discretion and as a condition precedent to the issuance thereof, require (unless such requirement is waived by Xxxx Xxxx or Xxxx Xxxxxx) the owner of such lost, stolen or destroyed certificate (unless such owner is an institutional investor) to give DHS a bond in such sum as it may direct as indemnity against any claim that may be made against DHS with respect to the certificate alleged to have been lost, stolen or destroyed.
(h) Approval and adoption of this Agreement by the stockholders of MAI shall constitute, as an integral part of the Merger, ratification of the appointment of, and the reappointment of, said Exchange Agent.
Appears in 1 contract
Samples: Merger Agreement (Diagnostic Health Services Inc /De/)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, ALC shall appoint an agent reasonably acceptable to Carriage House (THE "EXCHANGE AGENT") for the purpose of exchanging certificates as provided hereunder. As of the Effective Time, ALC shall deposit with the Exchange Agent for the purpose benefit of exchanging the Merger Consideration for:
(i) holders of Carriage House Shares, for exchange in accordance with this Section 1.03, through the Exchange Agent, certificates representing the shares of Clearwire Capital ALC Common Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated issuable pursuant to Section 1.02 in exchange for outstanding Carriage House Shares”). Promptly after the Closing DateEffective Time, NewCo ALC will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Carriage House Shares at the Effective Time a letter of transmittal and instructions that will for use in such exchange (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of certificates representing Carriage House Shares and the Uncertificated Shares Acknowledgment Agreement, as defined below, to the Exchange Agent).
(b) Each holder of shares of Clearwire Capital Stock will be entitled Carriage House Shares that have been converted into a right to receivereceive ALC Common Stock, on
(i) upon surrender to the Exchange Agent of (i) a Certificatecertificate or certificates representing such Carriage House Shares, and (ii) a completed and fully executed Acknowledgment Agreement in the form set forth in EXHIBIT A attached hereto ("ACKNOWLEDGMENT AGREEMENT"), together with a properly completed letter of transmittaltransmittal covering such shares, or
will be entitled to receive in exchange therefor (ii1) receipt that number of an “agent’s message” by the Exchange Agent (or other evidence, if any, whole shares of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the ALC Common Stock which such holder has a the right to receive under pursuant to Section 2.5. The 1.02, and (2) cash in lieu of fractional shares of Class A ALC Common Stock constituting which such holder has the Merger Consideration will right to receive pursuant to Section 1.05, and the certificate or certificates for Carriage House Shares so surrendered shall be in uncertificated book-entry formcancelled. Until so surrendered, unless a physical each such certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergershall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stockpurposes, except only the right to receive upon such surrender the Merger Consideration payable certificate representing shares of ALC Common Stock and cash in respect lieu of the Clearwire Capital Stockany fractional shares of ALC Common Stock as contemplated by this Section 1.03 and Section 1.05.
(c) If any portion shares of the Merger Consideration is ALC Common Stock are to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment issued to a Person other than the registered holder of the Certificate Carriage House Shares represented by the certificate or Uncertificated Share certificates surrendered in exchange therefor, it shall be a condition to such issuance that (i) the certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer, (ii) that the Person requesting such issuance shall pay to the Exchange Agent any transfer or other taxes required as a result of such issuance to a Person other than the registered holder of such Carriage House Shares or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
; and (d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(aiii) that remains unclaimed the Person requesting such issuance shall qualify as an "Accredited Investor" under Regulation D promulgated by the holders United States Securities and Exchange Commission and shall have completed and executed an Acknowledgment Agreement. For purposes of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCothis Agreement, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration"PERSON" means an individual, and a corporation, a partnership, an association, a trust or any dividends and distributions with respect to the Merger Considerationother entity or organization, in respect of those shares without including a government or political subdivision or any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat agency or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretoinstrumentality thereof.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint Mellon Investor Services LLC or such other exchange agent reasonably acceptable to the Company (the “Exchange Agent Agent”) for the purpose of exchanging Certificates representing shares of Company Common Stock and non-certificated shares represented by book entry (“Book-Entry Shares”) for the Merger Consideration. Parent will make available to the Exchange Agent, as needed, the Merger Consideration for:
(i) certificates representing to be delivered in respect of the shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Company Common Stock. Promptly after the Closing DateEffective Time, NewCo Parent will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital Company Common Stock at as of the Effective Time (other than any holder which has previously and properly surrendered all of its Certificates(s) to the Exchange Agent in accordance with Section 1.5 (each, an “Electing Stockholder”)), a letter of transmittal and instructions that will for use in such exchange (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) in such form as the Company and Parent may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the 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 Clearwire Capital Company Common Stock will be entitled that have been converted into a right to receivereceive the Merger Consideration, on
upon (i) with respect to any Electing Stockholder, completion of the calculations required by Section 1.4(a) or (ii) with respect to any holder that is not an Electing Stockholder, surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
will be entitled to receive (iiA) receipt one or more shares of an “agent’s message” by Parent Common Stock (which shall be in non-certificated book-entry form unless a physical Table of Contents certificate is requested) representing, in the Exchange Agent (or other evidenceaggregate, the whole number of shares of Parent Common Stock, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the such holder has a the right to receive under pursuant to Section 2.5. The shares 1.4 and (B) a check in the amount equal to the cash portion of Class A Common Stock constituting the Merger Consideration will Consideration, if any, that such holder has the right to receive pursuant to Section 1.4 and this Article 2, including cash payable in lieu of fractional shares pursuant to Section 2.2 and dividends and other distributions pursuant to Section 2.1(f). No interest shall be paid or accrued on any Merger Consideration, cash in uncertificated book-entry formlieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergereach such Certificate shall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(c) If any portion of the Merger Consideration is to be paid to registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the payment that
(i) either registration thereof that the surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting such delivery of the payment will Merger Consideration shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of such registration in the payment to name of a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable. 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 government or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) for the purpose of exchanging certificates representing Common Shares for the Merger Consideration for:
and shall deposit with the Exchange Agent, for the benefit of the holders of Common Shares, for exchange in accordance with this Article 1, the aggregate Merger Consideration, consisting of (i) certificates representing shares of Clearwire Capital Parent Stock (the “Certificates”) or
to be issued as Stock Merger Consideration and (ii) uncertificated cash sufficient to pay the aggregate Cash Merger Consideration. In addition, Parent shall deposit with the Exchange Agent, as necessary from time to time after the Effective Time, cash sufficient to pay any dividends or other distributions and cash in lieu of any fractional shares of Clearwire Capital Parent Stock (the “Uncertificated Shares”)payable pursuant to Section 1.03(b) . Promptly (and in any event, within two Business Days) after the Closing DateEffective Time, NewCo the Surviving Corporation will send, or will cause the Exchange Agent to send, to each holder of shares record of Clearwire Capital Stock Common Shares at the Effective Time (and make customary arrangements for the prompt delivery to each such holder) a letter of transmittal and instructions that will (“Letter of Transmittal”) for use in such exchange, which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Common Shares to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Stock will be entitled Common Shares that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Common Shares, together with a properly completed letter Letter of transmittalTransmittal covering such Common Shares, or
will be entitled to receive therefor (i) the Cash Merger Consideration payable in respect of such Common Shares, (ii) receipt a certificate or certificates representing that number of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The whole shares of Class A Parent Stock to which such holder is entitled pursuant to Section 1.02(b) and (iii) any dividends or distributions, and any cash in lieu of any fractional shares of Parent Stock, payable at the time of such surrender pursuant to Section 1.03(f), and the certificate or certificates representing such Common Stock constituting the Merger Consideration will Shares shall forthwith be in uncertificated book-entry formcanceled. Until so surrendered, unless a physical each such certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergershall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stockpurposes, except only the right to receive the Merger Consideration payable in respect of the Clearwire Capital Common Shares represented thereby and any such dividends or distributions and cash in lieu of fractional shares of Parent Stock, subject , however, to the Surviving Corporation’s obligation to pay all dividends that may have been declared by the Company in accordance with Section 5.01 and that remain unpaid at the Effective Time. No interest will be paid or will accrue on any cash payable as Merger Consideration, in lieu of any fractional shares of Parent Stock or otherwise pursuant to this Article.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the Person registered holder of the Common Shares represented by the certificate or certificates surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share is registeredexchange therefor, it will shall be a condition to such payment that the payment that
(i) either the certificate or certificates so surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of such payment (and the payment of any other amounts referred to in Section 1.03(b)) to a Person other than the registered holder of the Certificate or Uncertificated Share such Common Shares or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable. 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 government or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Commonwealth Telephone Enterprises Inc /New/)
Surrender and Payment. (a) Clearwire has appointed No later than five business days prior to the Closing Date, HoldCo shall appoint a bank or trust company reasonably acceptable to the Company to act as agent (the “Exchange Agent Agent”) for the purpose of exchanging the Merger Consideration for:
(i) for the Common Stock Consideration (A) certificates representing shares of Clearwire Capital Company Common Stock (the “Common Certificates”) or (B) uncertificated shares of Company Common Stock (the “Uncertificated Common Shares”), and (ii) for the Preferred Stock Consideration (A) certificates representing shares of Company Series C Preferred Stock (the “Preferred Certificates” and together with the Common Certificates, the “Certificates”) or
or (iiB) uncertificated shares of Clearwire Capital Company Series C Preferred Stock (the “Uncertificated Preferred” and together with the Uncertificated Common Shares, the “Uncertificated Shares”). At or prior to the Closing, the Parent Entities shall have deposited, or shall have caused to be deposited with or provided to, (1) the Depositary Bank, or a nominee for the Depositary Bank, a number of HoldCo Shares equal to the aggregate number of HoldCo ADSs to be issued as Common Stock Consideration and (2) the Exchange Agent, in escrow (x) for the benefit of the holders of Company Common Stock, irrevocable written instruction to cause the aggregate number of HoldCo ADSs to be issued as Common Stock Consideration, (y) for the benefit of the holders of Company Common Stock, receipts (or uncertificated book-entries, as applicable) representing such aggregate number of HoldCo ADSs, and (z) for the benefit of the holders of the Series C Preferred Stock, an amount in cash in U.S. dollars sufficient to pay the Preferred Stock Consideration. In addition, the Parent Entities shall deposit, or cause to be deposited, with the Exchange Agent, as necessary from time to time at or after the Closing any dividends or distributions payable pursuant to Section 2.04(f). All cash and HoldCo ADS, whether evidenced by receipts or book-entries, together with any dividends or distributions and cash in lieu of fractional shares in accordance with Section 2.05 deposited with or provided to the Exchange Agent by or on behalf of HoldCo, shall be referred to in this Agreement as the “Exchange Fund”. If for any reason the Exchange Fund is inadequate to pay the amounts to which holders of Company Stock shall be entitled under Section 2.03, the Parent Entities shall promptly deposit, or cause to be deposited promptly, additional cash with the Exchange Agent sufficient to make all cash payments of the aggregate Preferred Stock Consideration and any cash payable in lieu of fractional HoldCo ADSs and additional HoldCo ADSs with the Exchange Agent (and additional HoldCo Shares with the Depositary Bank) sufficient to make all payments of the aggregate Common Stock Consideration, and Parent, HoldCo and the Surviving Corporation shall in any event be liable for payment thereof. Promptly after the Closing DateClosing,
(I) the Parent Entities will instruct the Exchange Agent to pay the Merger Consideration out of the Exchange Fund in accordance with the terms of this Agreement (and, NewCo will for the avoidance of doubt, the Exchange Funds shall not be used for any purpose other than the delivery of the Merger Consideration) and (II) HoldCo shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Stock at as of immediately prior to the First Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. Subject to Section 2.04(e), the Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to ADSs held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect thereto for the account of Persons entitled thereto. No later than ten (10) Business Days prior to the Closing Date, the Parent Entities shall enter into an agreement with the Exchange Agent, in form and substance reasonably satisfactory to the Company, to effect the applicable terms of this Agreement (the “Exchange Agent Agreement”).
(b) At the First Effective Time, the stock transfer records of Merger Sub I shall record the issuance of all Merger Sub I Shares issuable in the First Merger as of the First Effective Time such that immediately following the First Effective Time such Merger Sub I Shares shall be deemed issued and outstanding Merger Sub I Shares. From and after the First Effective Time stock certificates previously evidencing ownership of shares of Company Common Stock converted in the First Merger into Merger Sub I Shares shall no longer evidence ownership of shares of Company Common Stock but shall evidence only ownership of the Merger Sub I Shares into which the Merger Sub I Shares previously represented by such stock certificates were converted in the First Merger. Each holder of shares of Clearwire Capital Company Common Stock will that have been converted into the right to receive Merger Sub I Shares in connection with the First Merger, and which Merger Sub I Shares are in turn converted into the right to receive the Merger Consideration in connection with the Second Merger, shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Common Stock Consideration that or Preferred Stock Consideration, as applicable, in respect of the holder has a right Company Stock represented by such Certificate or Uncertificated Share. For the avoidance of doubt, pursuant to the foregoing provisions, each Person entitled to receive under Section 2.5Merger Sub I Shares in the First Merger shall instead receive an equal number of HoldCo ADSs (or at such Person’s option, HoldCo Shares) to be issued following the Second Merger as the Common Stock Consideration. The shares HoldCo ADSs constituting part of Class A such Common Stock constituting the Merger Consideration will Consideration, at HoldCo’s option, shall be in uncertificated book-entry form, unless a physical certificate ADR is requested by the holder Person or is otherwise required under by applicable Law, in which case the Parent Entities shall cause the Exchange Agent to send such physical ADR to such Person promptly in accordance with the Exchange Agent Agreement. As a result of Until so surrendered or transferred, as the Mergercase may be, at each such Certificate or Uncertificated Share shall represent for all purposes after the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except Closing only the right to receive the such Merger Consideration payable and, in respect the case of Common Certificates and Uncertificated Common Shares, the Clearwire Capital Stockright to receive any dividends or other distributions pursuant to Section 2.04(f), in each case, as contemplated by this Article 2.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the First Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective TimeClosing, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock thereof provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Depositary Bank or Exchange Agent under pursuant to Section 2.6(a2.04(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve months after the Closing Date will shall be returned to NewCoremitted to, on or as designated by, HoldCo upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.Section
Appears in 1 contract
Samples: Merger Agreement
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock Shares (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Stock Shares (the “Uncertificated Shares”). At or prior to the Effective Time, Parent shall cause LG Chem Life Sciences Innovation Center, Inc., a Delaware corporation, or another wholly owned subsidiary of Parent that is a Delaware corporation to deposit with the Exchange Agent the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares that have been converted into the right to receive the Merger Consideration in accordance with Section 2.02(a). Promptly after the Closing DateEffective Time (but not later than three (3) Business Days thereafter), NewCo will send, or will Parent shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock such Shares at the Effective Time (1) in the case of holders of Certificates, a letter of transmittal in reasonable and instructions that will customary form (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates (or transfer affidavits of the Uncertificated Shares loss in lieu thereof pursuant to Section 2.08) to the Exchange Agent) and instructions for use in effecting the surrender of Certificates pursuant to such letter of transmittal and (2) in the case of Uncertificated Shares not held through Depository Trust Company (“DTC”), reasonable and customary provisions regarding delivery of an “agent’s message” with respect to such Uncertificated Shares.
(b) Each holder of shares of Clearwire Capital Stock will Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a CertificateCertificate (or an affidavit of loss in lieu thereof pursuant to Section 2.08), together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated SharesShares not held through DTC, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry formpayable for each Share represented by a Certificate or for each Uncertificated Share, unless a physical certificate is requested by without interest. Until so surrendered or transferred, as the holder case may be, each such Certificate or is otherwise required under applicable Law. As a result of the Merger, at Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration. No interest shall be paid or will accrue on any cash payable to holders of Certificates, Uncertificated Shares or any other securities pursuant to this Agreement. All Merger Consideration payable paid upon the surrender of Certificates or book-entry transfer of Uncertificated Shares in respect accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Clearwire Capital StockShares formerly represented by such Certificate or book-entry transfer of Uncertificated Shares.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will pay shall have paid to the Exchange Agent any transfer or and other similar Taxes required as a result of the payment of the Merger Consideration to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish shall have established to the satisfaction of the Exchange Agent and Parent that the Tax has such Taxes have been paid or is are not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockShares. If, after the Effective Time, Certificates or Uncertificated Shares that have been converted into the right to receive the Merger Consideration are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Clearwire Capital Stock Shares twelve (12) months after the Closing Date will Effective Time shall be returned to NewCo, on demand. Any the Surviving Corporation and any such holder who has not exchanged shares of Clearwire Capital Stock such Shares for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those shares such Shares without any interest thereon. Regardless Notwithstanding the foregoing, none of Parent, the preceding sentenceExchange Agent, NewCo will not Merger Subsidiary or the Surviving Corporation shall be liable to any holder of shares of Clearwire Capital Stock Shares for any amounts properly amount paid to a public official under pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders laws.
(f) Prior to the Effective Time, each of shares of Clearwire Capital Stock six years Parent, Merger Subsidiary and the Company shall cooperate to establish procedures with the Exchange Agent and DTC with the objective that the Exchange Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of Shares that have been converted into the right to receive the Merger Consideration in accordance with Section 2.02(a) that are held of record by DTC or that earlier date, such nominee immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, prior to the extent permitted Effective Time, multiplied by applicable Law, (ii) the property Merger Consideration (it being understood that no holder of NewCo, free and clear Uncertificated Shares held through DTC shall be required to provide a Certificate or an executed letter of any claims or interest of any Person previously transmittal to the Exchange Agent in order to receive the payment that such holders is entitled theretoto receive pursuant to Section 2.02(a)).
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Patriot or Bank shall appoint an agent (the “Exchange Agent”), who shall be reasonably acceptable to Prime to act as the agent, in accordance with the terms of an Exchange Agent Agreement (“Exchange Agent Agreement”), in form and substance mutually agreed upon by the parties, for the purpose of exchanging the Merger Consideration for:
for the Certificates representing the shares of Prime Common Stock. At the Closing, Patriot or Bank shall (i) certificates representing shares of Clearwire Capital Stock deposit with the Exchange Agent, sufficient cash to pay the Closing Payment (the “Certificates”as defined below) or
and (ii) uncertificated deposit with the Escrow Agent (as defined below) the Escrow Amount. If for any reason the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 2.1(d), Patriot and Bank shall take all steps necessary to deposit in trust additional cash with the Exchange Agent sufficient to make all payments in respect of the Prime Common Stock required under this Agreement, and Patriot 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 Clearwire Capital Prime Common Stock (for the “Uncertificated Shares”)Merger Consideration. Promptly after the Closing DateEffective Time, NewCo will Patriot shall send, or will shall cause the Exchange Agent to send, to each record holder of shares of Clearwire Capital Prime Common Stock at the Effective Time Time, a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Prime Common Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receivereceive the Closing Consideration Per Share, on
(i) upon surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittal, or
(ii) receipt of an “agent’s message” transmittal and such other documents as may reasonably be requested by the Exchange Agent (Agent. Until so surrendered or other evidencetransferred, if any, of transfer as the Exchange Agent case may reasonably request) be, and subject to the terms set forth in the case of a book-entry transfer of Uncertificated Sharesthis Section 2.2, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at each such Certificate shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Closing Consideration Per Share payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate. Upon payment of the Clearwire Capital StockClosing Consideration Per Share pursuant to the provisions of this Article II, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion All Closing Consideration Per Share paid upon the surrender of Certificates in accordance with the Merger Consideration is terms hereof shall be deemed to be have been paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition full satisfaction of all rights pertaining to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferredshares of Prime Common Stock formerly represented by such Certificate, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After and from and after the Effective Time, there will shall be no further registration of or transfers of shares of Clearwire Capital StockPrime Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled cancelled and exchanged for the Merger Closing Consideration payable in respect of the Clearwire Capital Stock Per Share provided for, and in accordance with the procedures set forth, in this Article 2II.
(d) Any portion of the Payment Fund that remains unclaimed by the holders of shares of Prime Common Stock twelve (12) months after the Effective Time shall be returned to Patriot, upon demand, and any such holder who has not exchanged shares of Prime Common Stock for the Merger Consideration Per Share in accordance with this Section 2.2 prior to that time shall thereafter look only to Patriot or the Surviving Corporation for payment of the Merger Consideration. Notwithstanding the foregoing, Patriot shall not be liable to any holder of shares of Prime Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders in respect of shares of Clearwire Capital Stock twelve months after the Closing Date will any Dissenting Shares shall be returned to NewCoPatriot or the Surviving Corporation, on upon demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Parent will act as exchange agent (the “Exchange Agent Agent”) for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock Shares (the “Certificates”) or
for the Merger Consideration (iiless the aggregate amount of Escrow Holdback and the Tax Escrow Fund, which Parent shall deliver to the Escrow Agent pursuant to Section 2.12) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after Prior to the Closing Date, NewCo will send, or will cause the Exchange Agent shall deliver or cause to send, be delivered to each holder Seller a letter of shares transmittal, in a form reasonably acceptable to the parties, and instructions for use in effecting the surrender of Clearwire Capital Stock at the Effective Time Certificates in exchange for such Seller’s portion of the Merger Consideration. On the Closing Date, Sellers’ Agent will surrender the Certificates to the Exchange Agent for cancellation together with a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) Upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, orthe Exchange Agent shall deliver on the Closing Date to each holder of Shares that have been converted into the right to receive a portion of the Merger Consideration pursuant to Section 2.02(a), the portion of the Merger Consideration payable for each Share represented by such Certificate as follows, subject to any adjustment pursuant to Sections 2.07, 2.10, 2.11, 2.12, 2.14 and 9.08:
(A) the aggregate Cash Amount payable pursuant to Section 2.02(a)(i) for the Shares represented by such Certificate (less the holder’s Pro Rata Share of the Cash Escrow Holdback Amount, which the Exchange Agent shall deliver to the Escrow Agent pursuant to Section 2.12); and
(B) a certificate representing the number of whole shares of Parent Common Stock that the holder of such Certificate has the right to receive pursuant to Section 2.02(a)(ii) (less the holder’s (i) Pro Rata Share of the Parent Stock Escrow Holdback Amount and (ii) receipt Tax Escrow Share of an “agent’s message” by the Tax Escrow Fund, which the Exchange Agent (or other evidenceshall deliver to the Escrow Agent, if anypursuant to Section 2.12); Until so surrendered, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at each Certificate shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the portion of the Merger Consideration payable in respect of into which the Clearwire Capital StockShares represented by such Certificate have been converted.
(c) If any portion of the Merger Consideration is to be paid delivered pursuant to this Section 2.04 to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to such delivery that the payment that
(i) either the Certificate so surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferredtransfer, and
(ii) and that the Person requesting the payment will such delivery shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the payment such delivery to a Person other than the registered holder of the Certificate or Uncertificated Share such Certificate, or establish to the reasonable satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockShares. If, after the Effective Time, Certificates or Uncertificated Shares are a Certificate is presented to NewCothe Surviving Entity, they will it shall be canceled and exchanged for the portion of the Merger Consideration payable in respect of into which the Clearwire Capital Stock provided for, and Shares represented by such Certificate have been converted in accordance with the procedures set forth, forth in this Article 2.
(e) Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Immediately prior to such time when amounts remaining unclaimed by holders of Shares would otherwise escheat to or become property of any Governmental Authority, such unclaimed amounts shall become, to the extent permitted by Applicable Law in effect at such time, the property of Parent free and clear of any claims or interest of any Persons previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will 2.05 to pay for Shares for which dissenter’s rights have been perfected shall be returned to NewCoParent, on upon demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent for the purpose of exchanging (in each case, other than Excluded Shares) (i) for the Common Merger Consideration for:
(iA) certificates representing shares of Clearwire Capital Company Common Stock (the “Common Stock Certificates”) or
or (iiB) uncertificated shares of Clearwire Capital Company Common Stock which immediately prior to the Effective Time were registered to a holder on the stock transfer books of the Company (the “Uncertificated Common Shares”), (ii) for the Series A Preferred Merger Consideration (A) certificates representing shares of Company Series A Preferred Stock (the “Series A Preferred Stock Certificates”) or (B) uncertificated shares of Company Series A Preferred Stock which immediately prior to the Effective Time were registered to a holder on the stock transfer books of the Company (the “Uncertificated Series A Preferred Shares”), and (iii) for the Series B Preferred Merger Consideration (A) certificates representing shares of Company Series B Preferred Stock (the “Series B Preferred Stock Certificates” and each of the Common Stock Certificates, Series A Preferred Stock Certificates and Series B Preferred Stock Certificates, a “Certificate”) or (B) uncertificated shares of Company Series B Preferred Stock which immediately prior to the Effective Time were registered to a holder on the stock transfer books of the Company (the “Uncertificated Series B Preferred Shares” and each of the Uncertificated Common Shares, the Uncertificated Series A Preferred Shares and the Uncertificated Series B Preferred Shares, the “Uncertificated Shares”). At or prior to the Effective Time, Parent shall deposit with the Exchange Agent, (i) for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Section 2.04 through the Exchange Agent, evidence of shares in book-entry form representing the shares of Parent Common Stock issuable pursuant to Section 2.03 in exchange for outstanding shares of Company Common Stock, (ii) for the benefit of the holders of shares of Company Series A Preferred Stock, for exchange in accordance with this Section 2.04 through the Exchange Agent, evidence of shares in book-entry form representing the shares of New Parent Replacement Series A Preferred Stock issuable pursuant to Section 2.03(ii) in exchange for outstanding shares of Company Series A Preferred Stock, and (iii) for the benefit of the holders of shares of Company Series B Preferred Stock, for exchange in accordance with this Section 2.04 through the Exchange Agent, evidence of shares in book-entry form representing the shares of New Parent Replacement Series B Preferred Stock issuable pursuant to Section 2.03(iii) in exchange for outstanding shares of Company Series B Preferred Stock. Parent agrees to make promptly 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 holders of Company Stock are entitled pursuant to Section 2.04(f) and cash in lieu of any fractional shares of Parent Common Stock to which such holders are entitled pursuant to Section 2.07. Promptly after the Effective Time and in any event within three (3) Business Days after the Closing Date, NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Common Stock represented by a Certificate at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent 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. All evidence of shares in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.04 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 accordance herewith. 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 Parent; provided that no such investment or losses thereon shall affect the dividends or other distributions to which holders of Company Common Stock are entitled pursuant to Section 2.04(f) or cash in lieu of fractional interests to which holders of Company Common Stock are entitled pursuant to Section 2.07. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
(b) Each holder of shares of Clearwire Capital Company Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, in respect of each share of Company Stock represented by such Certificate or Uncertificated Share (A) the aggregate applicable Merger Consideration that the holder has a right to receive under and (B) any cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect thereto as contemplated by Section 2.52.07 and Section 2.04(f), as applicable). The shares of Class Parent Common Stock, New Parent Replacement Series A Common Preferred Stock and New Parent Replacement Series B Preferred Stock constituting the part of such Merger Consideration will shall, at Parent’s option, be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stock.
(c) If any portion of the Merger Consideration (or cash in lieu of any fractional shares of Parent Common Stock or any dividends and distributions with respect thereto contemplated by Section 2.07 or Section 2.04(f), as applicable) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has such transfer or similar Taxes have been paid or is are not payable.
(d) After From and after the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockCompany Stock on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCoParent, the Surviving Corporation or the Exchange Agent for any reason, they will shall be canceled cancelled and exchanged for the applicable Merger Consideration payable (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect of to the Clearwire Capital Stock provided forMerger Consideration as contemplated by Section 2.07 and Section 2.04(f), and as applicable) with respect thereto in accordance with the procedures set forthforth in, in or as otherwise contemplated by, this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve (12) months after following the Closing Date will shall be returned delivered to NewCoParent or as otherwise instructed by Parent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the applicable Merger Consideration in accordance with this Section 2.6 before that date will 2.04 prior to such time shall thereafter look only to NewCo Parent for payment of the such Merger Consideration, Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Merger Considerationthereto as contemplated by Section 2.07 and Section 2.04(f), in respect of those shares as applicable), without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent and its Subsidiaries (including, after the Closing, the Surviving Corporation and its Subsidiaries) shall not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under in compliance with applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will Authority shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.04, and in any event within two (2) Business Days of such surrender or transfer, the Exchange Agent shall promptly pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Common Merger Consideration have been registered, (i) in connection with the payment of the Common Merger Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.07, as applicable, 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 Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Common Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Common 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 shares of Parent Common Stock constituting the Common Merger Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.07, as applicable, 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 Section 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 solely 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 1 contract
Surrender and Payment. (a) Clearwire has appointed MDH shall appoint the Exchange Agent for the purpose of exchanging the MDH Merger Consideration for:
: (i) certificates representing shares of Clearwire Capital MDH Common Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital MDH Common Stock (the “Uncertificated Shares”). Promptly after the Closing Date, NewCo PubCo will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital MDH Common Stock at the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital MDH Common Stock will be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
or (ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate MDH Merger Consideration that the holder has a right to receive under Section 2.52.3(d). The shares of PubCo Class A Common Stock constituting the MDH Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the MDH Merger, at the Effective Time, all shares of Clearwire Capital MDH Common Stock will cease to be outstanding and each holder of Clearwire Capital MDH Common Stock will cease to have any rights with respect to the Clearwire Capital MDH Common Stock, except the right to receive the MDH Merger Consideration payable in respect of the Clearwire Capital MDH Common Stock.
(c) If any portion of the MDH Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
: (i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
and (ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital MDH Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCoSurviving MDH, they will be canceled and exchanged for the MDH Merger Consideration payable in respect of the Clearwire Capital MDH Common Stock provided for, and in accordance with the procedures set forth, in this Article 2II.
(e) Any portion of the MDH Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital MDH Common Stock twelve 12 months after the Closing Date will be returned to NewCoSurviving MDH, on demand. Any holder who has not exchanged shares of Clearwire Capital MDH Common Stock for the MDH Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo Surviving MDH for payment of the MDH Merger Consideration, and any dividends and distributions with respect to the MDH Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo Surviving MDH will not be liable to any holder of shares of Clearwire Capital MDH Common Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital MDH Common Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) will become, to the extent permitted by applicable Law, the property of NewCoSurviving MDH, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Business Combination Agreement (MDH Acquisition Corp.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint its transfer agent or another agent reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company for the purpose of exchanging for the Merger Consideration for:
(iA) certificates representing shares of Clearwire Capital Company Stock (the “Certificates”) or
or (iiB) uncertificated shares of Clearwire Capital Company Stock (the “Uncertificated Shares”). Promptly after the Closing DateEffective Time (but in no event later than five Business Days after the Effective Time), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Stock at the Effective Time a letter of transmittal (in a form that was reasonably acceptable to the Company prior to the Effective Time) and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Company Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a CertificateCertificate (or affidavit in lieu thereof pursuant to Section 2.07), together with a properly completed letter of transmittal, or
in the case of Certificates, or (ii) receipt of an “agent’s message” by the Exchange Agent (or other such evidence, if any, of transfer as the Exchange Agent may reasonably request) request in the case of a book-entry transfer surrender of Uncertificated Shares, the aggregate Merger Consideration that in respect of the holder has Company Stock represented by a Certificate or Uncertificated Share (including cash in lieu of any fractional shares of Parent Stock to be paid pursuant to Section 2.09 and dividends or other distributions with respect to shares of Parent Stock to be paid pursuant to Section 2.03(h)). 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 under Section 2.5. The such Merger Consideration (including cash in lieu of any fractional shares of Class A Common Parent Stock constituting to be paid pursuant to Section 2.09 and dividends or other distributions with respect to shares of Parent Stock to be paid pursuant to Section 2.03(h)). At or prior to the Merger Consideration will Effective Time, Parent shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the holders of Company Stock and for exchange in uncertificated accordance with this Section 2.03, (x) certificates (or evidence of shares of Parent Stock in book-entry form, unless a physical certificate is requested by ) representing the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Parent Stock will cease issuable pursuant to Section 2.02(a) in exchange for outstanding shares of Company Stock and (y) cash sufficient to pay the aggregate Cash Consideration payable pursuant to Section 2.02(a) (including cash in lieu of any fractional shares of Parent Stock to be outstanding paid pursuant to Section 2.09 and each holder of Clearwire Capital Stock will cease to have any rights dividends or other distributions with respect to the Clearwire Capital shares of Parent Stock to be paid pursuant to Section 2.03(h)) (such cash and shares of Parent Stock, except collectively, the right “Exchange Fund”). Parent agrees to receive make available, directly or indirectly, to the Exchange Agent from time to time, as needed, additional cash or other securities or assets sufficient to pay any dividends or other distributions to which such holders are entitled pursuant to Section 2.03(h), which amounts shall become part of the Exchange Fund. The cash in the Exchange Fund may, pending its disbursement to the holders of Company Stock, be invested by the Exchange Agent as directed by Parent; provided that no such investment or losses shall affect the amounts payable to such holders of Company Stock and Parent shall promptly replace or cause to be replaced any funds deposited with the Exchange Agent that are lost through any investment so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Exchange Agent to pay the aggregate cash Merger Consideration payable (and the aggregate amount of cash in lieu of any fractional shares of Parent Stock to be paid pursuant to Section 2.09 and dividends or other distributions with respect to shares of Parent Stock to be paid pursuant to Section 2.03(h)). Earnings from investments, subject to the Clearwire Capital Stockimmediately preceding proviso, shall be paid to and shall be the sole and exclusive property of Parent. Except as contemplated by Section 2.03(e) hereof, the Exchange 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 Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes or fees required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable (including cash in lieu of any fractional shares of Parent Stock to be paid pursuant to Section 2.09 and dividends or other distributions with respect to shares of the Clearwire Capital Parent Stock to be paid pursuant to Section 2.03(h)) provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the former holders of shares of Clearwire Capital Company Stock twelve months one year after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such former holder of shares of Company Stock who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those such shares of Company Stock without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent and the Surviving Corporation shall not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority) will Authority shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.04 in respect of any Appraisal Shares shall be returned to Parent, upon demand; provided, however, that Parent shall promptly deposit with the Exchange Agent any funds, assets or securities (including Parent Stock) necessary to provide for payment of the Merger Consideration (including cash in lieu of any fractional shares of Parent Stock to be paid pursuant to Section 2.09 and dividends or other distributions with respect to shares of Parent Stock to be paid pursuant to Section 2.03(h)) with respect to any Appraisal Shares that lose their status as such.
(g) The shares of Parent Stock constituting the Stock Consideration shall be issued in uncertificated book-entry form, unless a physical certificate is otherwise required under Applicable Law or requested by a holder of shares of Company Stock.
(h) No dividends or other distributions with respect to Parent Stock with a record date on or after the Effective Time shall be paid to the holder of any unsurrendered share of Company Stock with respect to shares of Parent Stock that such holder would be entitled to receive upon surrender of such share of Company Stock until such holder shall surrender such share of Company Stock in accordance with this Article 2. After the surrender of any such share of Company Stock in accordance with this Article 2, such holder thereof that is entitled to receive shares of Parent Stock pursuant to this Article 2 shall then be entitled to receive, and Parent shall then cause to be paid to such Person, any such dividends or other distributions, without interest thereon, with a record date on or after the Effective Time and which theretofore had become payable (whether or not prior to such surrender) with respect to whole shares of Parent Stock issuable to such holder in respect of such shares of Parent Stock.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, New Sailfish shall appoint the Exchange Agent for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Sailfish Common Stock (the “Certificates”) ); or
(ii) uncertificated shares of Clearwire Capital Sailfish Common Stock (the “Uncertificated Shares”). Prior to the Effective Time, New Sailfish shall provide or shall cause to be provided to the Exchange Agent shares of New Sailfish Common Stock sufficient in order for the Exchange Agent to distribute the aggregate Merger Consideration. Promptly after the Closing Date, NewCo New Sailfish will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Sailfish Common Stock at the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Sailfish Common Stock will be entitled to receive, on
(i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittaltransmittal (or other evidence, if any, of transfer as the Exchange Agent may reasonably request), or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.52.03. The shares of Class A New Sailfish Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Sailfish Common Stock will cease to be outstanding and each holder of Clearwire Capital Sailfish Common Stock will cease to have any rights with respect to the Clearwire Capital Sailfish Common Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital StockSailfish Common Stock under Section 2.03.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that:
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Transfer Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Sailfish Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Entity, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Sailfish Common Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a2.04(a) that remains unclaimed by the holders of shares of Clearwire Capital Sailfish Common Stock twelve 12 months after the Closing Date will be returned to NewCothe Surviving Entity, on demand. Any holder who has not exchanged shares of Clearwire Capital Sailfish Common Stock for the Merger Consideration in accordance with this Section 2.6 2.04 before that date will look only to NewCo the Surviving Entity or New Sailfish for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless .
(f) None of the preceding sentenceParties, NewCo will not the Surviving Entity or the Exchange Agent shall be liable to any holder of shares of Clearwire Capital Sailfish Common Stock for any amounts properly paid or delivered to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Sailfish Common Stock six (6) years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) will become, to the extent permitted by applicable Law, the property of NewCothe Surviving Entity, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Transaction Agreement (SAILFISH ENERGY HOLDINGS Corp)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall make available to the Exchange Agent for the purpose of exchanging the Merger Consideration for:to be paid and/or issued in respect of the Certificates and the Uncertificated Shares. In addition, Parent shall deposit, or cause to be deposited with the Exchange Agent, as necessary from time to time after the Effective Time, any distributions or dividends payable pursuant to Section 2.04(h) with respect to shares of Company Common Stock with a record and payment date after the Effective Time and prior to the surrender of such shares of Company Common Stock and cash in lieu of any fractional shares payable pursuant to this Section 2.04. All shares of Parent Common Stock and cash, together with the amount of any dividends and distributions deposited with the Exchange Agent pursuant to this Section 2.04, shall hereinafter be referred to as the “Exchange Fund”. Parent shall cause the Exchange Agent to deliver the Merger Consideration and other payments contemplated by this Article 2 out of the Exchange Fund.
(ib) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly As promptly as practicable after the Closing DateEffective Time (but no later than two (2) Business Days thereafter), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Common Stock at the Effective Time (other than Excluded Shares, Dissenting Shares or any holder of a Certificate who properly made and did not revoke a Mixed Election, Cash Election or a Stock Election) a letter of transmittal and instructions that will (which shall be reasonably acceptable to the Company and shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(bc) Each holder of shares of Clearwire Capital Company Common Stock will who properly made and did not revoke a Mixed Election, Cash Election or a Stock Election shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate applicable Merger Consideration that in respect of the holder has Company Common Stock represented by a right Certificate or Uncertificated Share, any dividends or other distributions payable pursuant to receive under Section 2.5. The 2.04(h) and cash in lieu of any fractional shares of Class A Company Common Stock constituting payable pursuant to Section 2.07, and the Merger Consideration will Certificate so surrendered shall forthwith be in uncertificated book-entry formcancelled. Until so surrendered or transferred, unless a physical certificate is requested by as the holder case may be, each such Certificate or is otherwise required under applicable Law. As a result of the Merger, at Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the applicable Merger Consideration. Each holder of a Certificate representing Non-Electing Shares, upon surrender of such Certificate (or affidavit of loss in lieu thereof as provided in Section 2.11) to the Exchange Agent in accordance with the terms of such transmittal materials, shall be entitled to receive in exchange therefor the Mixed Election Consideration for each Non-Electing Share formerly represented by such Certificate, any dividends or other distributions payable pursuant to Section 2.04(h) and cash in respect lieu of any fractional shares of Company Common Stock pursuant to Section 2.07, and the Clearwire Capital StockCertificate so surrendered shall forthwith be cancelled.
(cd) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(de) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Entity or the Exchange Agent, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock and other payments provided for, and in accordance with the procedures set forth, in this Article 2.
(ef) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.04(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve (12) months after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.04 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect thereto pursuant to the Merger ConsiderationSection 2.04(h) and cash in lieu of any fractional shares of Company Common Stock payable pursuant to Section 2.07, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Company Common Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after laws.
(g) Subject to Section 2.04(d)(ii), the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property payment of any Governmental Authoritytransfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) will becomeincurred 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 borne by the Parent or the Surviving Entity.
(h) 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 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 2.04. Following such surrender or transfer, there shall be paid, without interest, to the extent permitted by applicable LawPerson in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the property of NewCo, free and clear amount of any claims cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.06(a) and the amount of all dividends or interest other distributions with a record date after the Effective Time previously paid or payable on the date of any Person previously entitled theretosuch 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.
Appears in 1 contract
Samples: Merger Agreement (Fidelity National Financial, Inc.)
Surrender and Payment. (a) Clearwire has appointed At or promptly after the Exchange Agent for Effective Time (but in any event within one Business Day), the purpose of exchanging the Merger Consideration for:
Parent shall deposit, or shall cause to be deposited (i) with a paying agent selected by Parent (subject to the consent, not to be unreasonably withheld, conditioned or delayed, of the Company) (the “Paying Agent”), for the benefit of the holders of (A) certificates representing that immediately prior to the Effective Time evidenced shares of Clearwire Capital Company Common Stock (the “Certificates”) or
and (iiB) uncertificated shares of Clearwire Capital Company Common Stock (the “Uncertificated Shares”), for exchange in accordance with this Article III, cash in an amount equal to the aggregate amount payable as Merger Consideration under Section 3.1(a) (the “Fund”). Promptly As soon as reasonably practicable after the Closing DateEffective Time and in any event not later than the third (3rd) Business Day following the Effective Time, NewCo will send, or will cause the Exchange Paying Agent to send, shall mail to each holder of shares of Clearwire Capital Company Common Stock at the Effective Time a letter of transmittal in customary form and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in connection with such exchange. Upon proper surrender of a Certificate for exchange and cancellation or transfer of Uncertificated Shares to the Paying Agent, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other customary documents as may be required pursuant to such instructions, the holder of such Certificate or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration in respect of the shares of Company Common Stock formerly represented by any such Certificate or Uncertificated Shares, and such Certificate so surrendered and any such Uncertificated Shares so transferred shall forthwith be cancelled.
(b) Each holder of shares of Clearwire Capital Company Common Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed letter of transmittal, or
or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of the holder has a right to receive under Section 2.5. The shares of Class A Company Common Stock constituting formerly represented by such holder’s Certificate or Uncertificated Share. Until so surrendered or transferred, as the Merger Consideration will be in uncertificated book-entry formcase may be, unless a physical certificate is requested by the holder each such Certificate or is otherwise required under applicable Law. As a result of the Merger, at Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Paying Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the reasonable satisfaction of the Exchange Paying Agent that the Tax has such Taxes have been paid or is are not payable.
(d) After At and after the Effective Time, there will shall be no further registration transfers on the stock transfer books of transfers of shares of Clearwire Company Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with with, the procedures set forth, forth in this Article 2Article III.
(e) Any portion of the Merger Consideration made available to the Exchange Paying Agent under Section 2.6(apursuant to (a) that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve (12) months after the Closing Date will Effective Time shall, at the request of Parent, be returned delivered to NewCothe Surviving Corporation, on demand. Any and any such holder who has not exchanged shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before Section 3.4 prior to that date will time shall thereafter look only to NewCo the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless Notwithstanding anything to the contrary contained herein, none of the preceding sentenceAcquirer Parties, NewCo will not the Company, the Paying Agent or any other Person shall be liable to any holder or former holder of shares of Clearwire Capital Company Common Stock for any amounts amount properly paid delivered to a public official under pursuant to applicable abandoned property, escheat or similar Laws.
(f) The Paying Agent will invest all cash included in the Fund as directed by Parent; provided, however, 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, 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 Uncertificated Shares pursuant to this Article III. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) interest and other income resulting from such investments will become, be paid to the Surviving Corporation pursuant to Section 3.4(e). To the extent permitted by applicable Lawthat there are losses with respect to such investments, or the property Fund diminishes for other reasons below the level required to make prompt payments of NewCothe Merger Consideration as contemplated hereby, free and clear Parent will promptly replace or restore the portion of the Fund lost through investments or other events so as to ensure that the Fund is, at all times, maintained at a level sufficient to make such payments. The Fund will not be used for any claims or interest of any Person previously entitled theretopurpose other than the foregoing.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Exchange Agent Effective Time, DHS shall appoint American Stock Transfer & Trust Company as agent (the "EXCHANGE AGENT") for the purpose of exchanging certificates representing Shares for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly after the Closing DateEffective Time (but in any event within five (5) business days thereafter), NewCo DHS will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Shares at the Effective Time (i) a letter of transmittal and instructions that will for use in such exchange (which shall specify that delivery of the delivery will Merger Consideration shall be effected, and risk of loss and title will to the certificates representing MAI Common Stock shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent), and (ii) instructions for use in effecting the surrender of the certificates representing Shares in exchange for the certificates representing DHS Common Stock constituting Merger Consideration. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of certificates theretofore representing Shares for any amount which may be required to be paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
(b) Each holder of shares of Clearwire Capital Stock will be entitled Shares that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Shares, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated transmittal covering such Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right entitled to receive the Merger Consideration payable in respect of such Shares and any dividends payable pursuant to Section 1.03(f). Until so surrendered, each such certificate shall, after the Clearwire Capital StockEffective Time, represent for all purposes only the right to receive the Merger Consideration and any dividends payable pursuant to Section 1.03(f).
(c) If any portion of the certificate representing Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment delivered to a Person other than the registered holder of the Certificate Shares represented by the certificate or Uncertificated Share or establish certificates surrendered in exchange therefor, it shall be a condition to the satisfaction issuance of the Exchange Agent such certificate evidencing DHS Common Stock that the Tax has been paid certificate or is not payable.
(d) After certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available Person requesting such payment shall pay to the Exchange Agent under Section 2.6(a) that remains unclaimed any transfer or other taxes required by the holders reason of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.the
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed At least ten (10) Business Days prior to the Closing Date, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) and enter into an exchange agent agreement, reasonably acceptable to the Company, with such agent for the purpose of exchanging for the Merger Consideration for:
as promptly as practicable after the Effective Time (i) certificates representing shares of Clearwire Capital Stock Company Common Shares (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Stock Company Common Shares (the “Uncertificated Shares”). Promptly At or immediately after the Closing DateEffective Time, NewCo will Parent shall make available to the Exchange Agent the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. As promptly as practicable after the Effective Time (but no later than two (2) Business Days thereafter), Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Company Common Shares at the Effective Time a letter of transmittal and instructions that (which will be in a form reasonably acceptable to the Company and finalized prior to the Effective Time and which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Stock Company Common Shares that have been converted into the right to receive the Merger Consideration will be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that payable for each Company Common Share represented by a Certificate or for each Uncertificated Share (less any applicable withholding). Until so surrendered or transferred, as the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration case may be, each such Certificate or Uncertificated Share will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at represent from and after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration Consideration. No interest will be paid or will accrue on the cash payable in respect upon surrender of the Clearwire Capital Stockany such Company Common Shares.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After At the Effective Time, the share transfer books of the Company will be closed, and there will be no further registration of transfers of shares of Clearwire Capital StockCompany Common Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Clearwire Capital Stock Company Common Shares twelve (12) months after the Closing Date Effective Time will be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock any Company Common Share for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date time will thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those shares such Company Common Share without any interest thereonthereon (subject to abandoned property escheat or similar Applicable Law). Regardless Notwithstanding the foregoing, none of Parent, the preceding sentence, NewCo Surviving Corporation or the Exchange Agent will not be liable to any holder of shares of Clearwire Capital Stock Company Common Shares for any amounts properly paid Merger Consideration delivered to a public official under Governmental Authority pursuant to any applicable abandoned property, escheat or similar LawsApplicable Law. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (If any Certificate shall not have been surrendered or that earlier date, immediately before the time when the amounts Uncertificated Share shall not have been transferred prior to such date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Authority) will become, then any such Merger Consideration will, to the extent permitted by applicable Applicable Law, become the property of NewCoParent, free and clear of any all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Exchange Agent Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the "EXCHANGE AGENT") for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Common Stock (the “Certificates”"CERTIFICATES") or
(ii) uncertificated for the Merger Consideration, and Parent and Exchange Agent shall enter into an exchange agreement which shall, in form and substance, be reasonably acceptable to the Company. Prior to the Effective Time, Parent shall deposit or cause to be deposited with the Exchange Agent in a separate fund established for the benefit of the holders of shares of Clearwire Capital Stock Common Stock, cash sufficient to pay the aggregate Merger Consideration required to be paid for all of the Certificates at the Effective Time. Any cash deposited with the Exchange Agent shall not be used for any purpose other than as set forth in this Article 2 and shall be invested by the Exchange Agent as directed by Parent or the Surviving Corporation in: (A) direct obligations of, or obligations the “Uncertificated Shares”principal of and interest on which are unconditionally guaranteed by, the United States of America with a remaining term at the time of acquisition thereof not in excess of 90 days, (B) money market accounts or certificates of deposit maturing within 90 days of the acquisition thereof and issued by a bank or trust company organized under the laws of the United States of America or a State thereof having a combined capital surplus in excess of $500,000,000 (a "UNITED STATES BANK"), (C) commercial paper issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor's Corporation and P1 by Moody's Investors Service, Inc. with a remaining term at the time of xxxxxxxtion thereof not in excess of 90 days or (D) demand deposits with any United States Bank. Promptly The earnings and interest thereon shall be paid to Parent or as Parent directs. As soon as reasonably practicable (but not more than five Business Days) after the Closing DateEffective Time, NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital Common Stock at the Effective Time Time, a letter of transmittal and instructions that will for use in effecting the surrender of a Certificate in exchange for payment of the applicable Merger Consideration (which shall (i) be in a form reasonably acceptable to each of Parent and the Company and (ii) specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Common Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
(i) upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” transmittal and such other documents as may reasonably be required by the Exchange Agent (Agent, the applicable Merger Consideration in respect of the Common Stock represented by a Certificate. Such payment of the Merger Consideration, without any interest thereon, shall be sent to such holder of shares of Common Stock promptly after receipt of such Certificate and letter of transmittal and other documents by the Exchange Agent. Until so surrendered or other evidencetransferred, if any, of transfer as the Exchange Agent case may reasonably request) in the case of a book-entry transfer of Uncertificated Sharesbe, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at each such Certificate shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to deposited with the Exchange Agent under pursuant to Section 2.6(a2.05(a) that remains unclaimed by the holders of shares of Clearwire Capital Common Stock twelve six months after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.05 prior to that date will time shall thereafter look only to NewCo Parent or the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares Consideration without any interest thereon. Regardless Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the preceding sentence, NewCo will not Company or the Exchange Agent shall be liable to any holder of shares of Clearwire Capital Common Stock for any amounts properly Merger Consideration paid to a public official under pursuant to any applicable abandoned property, escheat or similar Lawslaws. Any amounts Merger Consideration remaining unclaimed by holders of shares of Clearwire Capital Common Stock six five years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts any Merger Consideration would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Lawlaw, the property of NewCo, the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Sylvan Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent, at its expense, shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent Agent”) to act as the agent for the purpose of exchanging the Merger Consideration for:
: (i) certificates representing the Certificates, or (ii) book-entry shares of Clearwire Capital Stock which immediately prior to the Effective Time represented the Shares (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Book-Entry Shares”). At the Closing, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable in respect of all of the Shares represented by the Certificates and the Book-Entry Shares (the “Payment Fund”). The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided, however, that: (A) no such investment or losses thereon shall affect the Merger Consideration payable to the holders of Shares represented by the Certificates and the Book-Entry Shares; and (B) such investments shall be in obligations of or guaranteed by the United States of America or any agency or instrumentality thereof and backed by the full faith and credit of 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, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank that are then publicly available). If the Payment Fund is inadequate to pay the Merger Consideration that is payable in respect of all of the Shares represented by the Certificates and the Book-Entry Shares due to any loss in the Payment Fund or otherwise, Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation or Parent, and any amounts in excess of the amounts payable pursuant to Section 2.01 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, including those of the Exchange Agent, incurred in connection with the exchange of Shares for the Merger Consideration. Except as otherwise expressly set forth in this Agreement, all fees and expenses incurred in connection herewith and the transactions contemplated hereby shall be paid by the party hereto incurring such expenses, whether or not the Merger is consummated. The Payment Fund shall not be used for any purpose other than to pay the Merger Consideration that is payable in respect of all of the Shares represented by the Certificates and the Book-Entry Shares. Promptly after the Closing DateEffective Time, NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each record holder of shares of Clearwire Capital Stock Shares at the Effective Time Time, a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Stock will Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
receive the Merger Consideration allocable to such holder in respect of each Share of Company Common Stock (being the Common Per Share Consideration) or Company Preferred Stock (being the applicable Preferred Per Share Consideration) held by such holder and represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or
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 a bookBook-entry transfer of Uncertificated Entry Shares. Until so surrendered or transferred, as the aggregate Merger Consideration that case may be, and subject to the holder has a right to receive under terms set forth in Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book2.03, each such Certificate or Book-entry formEntry Share, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergeras applicable, at shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the allocable Merger Consideration payable in respect thereof or the right to demand to be paid the “fair value” of the Clearwire Capital StockShares represented thereby as contemplated by Section 2.03. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share.
(c) If any portion of the Merger Common Per Share Consideration or the Preferred Per Share Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable Uncertificated such Book-Entry Share will shall be properly transferred, and
and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes Tax required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After 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 formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there will shall be no further registration of transfers of shares Shares on the stock transfer books of Clearwire Capital Stockthe Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to NewCothe Surviving Corporation, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(ain respect of any Dissenting Shares shall be returned to Parent, upon demand.
(f) that Any portion of the Payment Fund which remains unclaimed by undistributed to the holders of shares of Clearwire Capital Stock twelve Shares for six (6) months after the Closing Date will Effective Time shall be returned delivered to NewCothe Surviving Corporation upon demand, on demand. Any holder and any holders of Shares who has have not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance theretofore complied with this Section 2.6 before that date will Article II shall thereafter look only to NewCo the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless .
(g) None of Parent, the preceding sentence, NewCo will not Company or the Surviving Corporation shall be liable to any holder of shares of Clearwire Capital Stock Shares for any amounts properly paid cash from the Payment Fund delivered to a public official under applicable pursuant to any abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders Law.
(h) No dividends or other distributions with respect to capital stock of shares of Clearwire Capital Stock six years the Surviving Corporation with a record date on or after the Closing Date (or that earlier date, immediately before Effective Time shall be paid to the time when the amounts would otherwise escheat to or become property holder of any Governmental Authorityunsurrendered Certificates.
(i) will becomeParent and the Company shall reasonably cooperate with one another in order to, and, to the extent permitted by applicable Lawfeasible, Parent shall use reasonable commercial efforts to cause the property Exchange Agent to, implement reasonable procedures so that each holder of NewCoShares entitled to receive at least $1,000,000 in aggregate Merger Consideration shall have the opportunity to surrender his, free her or its Certificates and clear letter of any claims transmittal at or interest of any Person previously immediately following the Closing and, promptly following the Effective Time, receive the Merger Consideration to which such holder is entitled theretounder this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Comforce Corp)
Surrender and Payment. X-ceed shall, at the Effective Time and upon surrender of a Mercury Certificate (a) Clearwire has appointed the Exchange Agent for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”hereinafter defined). Promptly after the Closing Date, NewCo will send, or will cause the Exchange Agent to send, deliver to each holder of record of one or more certificates representing Mercury Common Stock (collectively, the "Mercury Certificates") that has been converted into X-ceed Common Shares as set forth in Section 1(f), (1) a certificate or certificates representing the number of X-ceed Common Shares into which the shares of Clearwire Capital Stock at represented by the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effectedMercury Certificate so surrendered shall have been converted as provided in Section 1(f), and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares (2) cash in an amount equal to the Exchange Agent.
(b) Each holder Per Share Cash Consideration multiplied by the number of shares of Clearwire Capital Mercury Common Stock will be entitled to receiverepresented by such Mercury Certificate, on
(i) surrender by certified or bank check payable to the Exchange Agent order of a Certificate, together with a properly completed letter the holder of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent such Mercury Certificate (or other evidence, if any, of transfer as the Exchange Agent may reasonably requesthis or her designee) in the case of a book-entry or by wire transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has immediately available funds to a right to receive under Section 2.5deposit account designated by such holder. The shares of Class A If any X-ceed Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease Shares are to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable issued in respect of the Clearwire Capital Stock.
(c) If any portion of the Merger Consideration is to be paid to a Person name other than the Person that in whose name the which a Mercury Certificate so surrendered Certificate or the transferred Uncertificated Share is then registered, it will shall be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent such exchange that the Tax has been paid or is not payable.
(d) After Mercury Certificate surrendered be accompanied by payment of any applicable transfer taxes and documents required for a valid transfer in the Effective Time, there will be no further registration reasonable judgment of transfers of shares of Clearwire Capital StockX-ceed and its counsel. If, From and after the Effective Time, Certificates until so surrendered, each Mercury Certificate shall be deemed for all corporate purposes, except as set forth below, to evidence the number of X-ceed Common Shares into which the Mercury Common Stock represented by such Mercury Certificate shall have been converted. Unless and until any Mercury Certificate shall be so surrendered, the holder of such Mercury Certificate shall have no right to vote or Uncertificated to receive any dividends or other distributions made to holders of record of X-ceed Common Shares are presented after the Effective Time. Upon surrender of a Mercury Certificate, the holder of record thereof shall receive, together with certificates representing X-ceed Common Shares to NewCo, they will which he shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and 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 X-ceed Common Shares after the procedures set forth, in this Article 2.
(e) Any portion Effective Time with respect to such shares. X-ceed shall be authorized to deliver certificates for X-ceed Common Shares attributable to any Mercury Certificate theretofore issued which has been lost or destroyed upon receipt of satisfactory evidence of ownership of the Merger Consideration made available to shares of Mercury Common Stock formerly represented thereby and of appropriate indemnification of X-ceed. Schedule A annexed hereto sets forth each holder of record of Mercury Common Stock, the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders number of shares of Clearwire Capital Mercury Common Stock twelve months after owned by such holder, and the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged Mercury Certificate(s) representing the shares of Clearwire Capital Mercury Common Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed owned by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretosuch holder.
Appears in 1 contract
Samples: Merger Agreement (X Ceed Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Holding Company shall appoint an agent to be designated by VoiceStream (the "Exchange Agent Agent") for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Omnipoint Common Stock (the “"Certificates”") or
for the Merger Consideration. At the Effective Time, Holding Company will deposit (iior cause to be deposited) uncertificated with the Exchange Agent the Merger Consideration to be paid in respect of the shares of Clearwire Capital Stock (the “Uncertificated Shares”"Exchange Fund"). Upon receipt, the Exchange Agent will invest the cash portion of the Exchange Fund in United States government securities maturing at the Election Deadline or such other investments as VoiceStream and Omnipoint may mutually agree. Promptly after the Closing DateEffective Time, NewCo VoiceStream will send, or will cause the Exchange Agent to send, (A) to each holder of shares of Clearwire Capital Stock Omnipoint Common Stock, at the Effective Time Time, a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange, and (B) to each holder of shares of Omnipoint Common Stock, an election form (the "Election Form") providing for such holders to make the Standard Election, the Cash Election or the Stock Election. Any Standard Election (other than a deemed Standard Election), Cash Election or Stock Election shall be validly made only if the Exchange Agent shall have received by 5:00 p.m., New York City time, on a date (the "Election Deadline") to be mutually agreed upon by VoiceStream and Omnipoint (which date shall not be later than the twentieth Business Day after the Effective Time), an Election Form properly completed and executed (with the signature or signatures thereon guaranteed to the extent required by the Election Form) by such holder accompanied by such holder's Certificates, or by an appropriate guarantee of delivery of such Certificates from a member of any registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States as set forth in such Election Form. Any holder of Omnipoint Common Stock who has made an election by submitting an Election Form to the Exchange Agent may at any time prior to the Election Deadline change such holder's election by submitting a revised Election Form, properly completed and signed that is received by the Exchange Agent prior to the Election Deadline. Any holder of Omnipoint Common Stock may at any time prior to the Election Deadline revoke his election and withdraw his Certificates deposited with the Exchange Agent by written notice to the Exchange Agent received by the close of business on the day prior to the Election Deadline. VoiceStream shall have the right to make rules (which will be described in the Election Form), not inconsistent with the terms of this Agreement, governing the validity of Election Forms and the manner and extent to which Standard Elections, Cash Election or Stock Elections are to be taken into account in making the determinations prescribed by Sections 3.3(g) and 3.3(h).
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) Upon surrender to the Exchange Agent of a its Certificate, together with a properly completed letter of transmittal, or
each holder of shares of Omnipoint Common Stock (iithe "Omnipoint Holders") receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right will be entitled to receive under Section 2.5. The shares of Class A Common Stock constituting promptly after the Election Deadline the Merger Consideration will be (elected or deemed elected by it, subject to Sections 3.3(g) and (h)) in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result respect of the Mergershares of Omnipoint Common Stock represented by its Certificate. Until so surrendered, at each such Certificate shall represent after the Effective Time, for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stockpurposes, except only the right to receive the Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate so surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
(i) either the surrendered that such Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the Certificate or Uncertificated Share such Certificate, or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Omnipoint Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Stock Election Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 23.
(e) Any portion of the Merger Consideration Exchange Fund made available to the Exchange Agent under pursuant to Section 2.6(a3.4(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months Omnipoint Holders, one year after the Closing Date will Effective Time shall be returned to NewCoHolding Company, on upon demand. Any , and any such holder who has not exchanged its shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before 3.4 prior to that date will time shall thereafter look only to NewCo Holding Company for payment of the Merger Considerationsuch consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares such shares, in each case without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Holding Company shall not be liable to any holder of shares of Clearwire Capital Stock Omnipoint Holder for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six the Omnipoint Holders five years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityBody) will shall become, to the extent permitted by applicable Lawlaw, the property of NewCo, Holding Company free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to any Holding Company Common Stock and no cash payment in lieu of fractional shares as provided in Section 3.7, shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in Section 3.4(b). Following such surrender, there shall be paid, without interest, to the Person in whose name such Holding Company Common Stock has been registered, (i) at the time of such surrender, (A) in the case of Certificates, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.7, and (B) 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, with respect to such Holding Company 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 surrender, and with a payment date subsequent to surrender, payable with respect to such Holding Company Common Stock.
(g) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.4(a) to pay for shares for which appraisal rights have been perfected shall be returned to Holding Company upon demand.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Omnipoint Corp \De\)
Surrender and Payment. (a) Clearwire has appointed Prior to the First Effective Time, the Company will appoint an exchange agent (the “Exchange Agent Agent”) reasonably satisfactory to TRTL for the purpose of exchanging Certificates for the Merger Consideration for:
(i) certificates representing shares consideration payable upon due surrender of Clearwire Capital Stock (Certificates pursuant to the “Certificates”) or
(ii) uncertificated shares provisions of Clearwire Capital Stock (the “Uncertificated Shares”)this Article IV, and will enter into an agreement with such Exchange Agent on terms reasonably satisfactory to TRTL. Promptly As soon as reasonably practicable after the Closing DateFirst Effective Time, NewCo the Company will send, or will cause the Exchange Agent to send, to each holder of shares record of Clearwire Capital Stock at the Effective Time Conversion Shares a letter of transmittal and instructions that (which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) to the Exchange Agent) and (ii) to each holder of Company Shares a letter of transmittal (which will specify that the delivery will be effected, and risk of loss and title will pass, only once the register of members of the Company has been updated), both in such form as the Company may reasonably direct, 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 consideration payable upon due surrender of the Certificates or exchange of Company Shares once the register of members of the Company has been updated pursuant to the provisions of this Article IV.
(b) At or prior to the First Effective Time, the Company will cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of Conversion Shares and Company Shares, the consideration payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) in relation to the Conversion Shares only, and upon registration in the register of members, in relation to the Company Shares, pursuant to the provisions of this Article IV. Following the Second Effective Time, the Company will make available to the Exchange Agent, when and as needed, cash sufficient to pay the cash portion of any consideration payable pursuant to the provisions of this Article IV. All cash and book-entry shares representing Company Ordinary Shares deposited by the Company with the Exchange Agent for distribution pursuant to this Article IV are referred to in this Agreement as the “Exchange Fund.” The Exchange Agent will, pursuant to irrevocable instructions to be delivered to the Exchange Agent by the Company, deliver the appropriate consideration 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 the Company; provided, that no such investment or losses thereon will affect the consideration payable upon due surrender of the Certificates pursuant to the provisions of this Article IV and the Company will promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of Conversion Shares or Company Shares in the amount of any such losses. Any interest and other income resulting from such investments will be the property of, and paid to, the Company.
(c) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) Conversion Shares upon surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or
(ii) receipt duly executed and completed in accordance with the instructions thereto, and each holder of an “agent’s message” Company Shares upon delivery to the Exchange Agent of a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto and, in each case, such other documents as may reasonably be required by the Exchange Agent (or other evidenceAgent, if anywill be entitled to receive in exchange therefor the consideration payable upon due surrender, of transfer as the Exchange Agent may reasonably request) in the case of a the Conversion Shares only, of the Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article IV, that such holder has the right to receive; provided, that any TRTL Parent Common Shares issuable pursuant to Section 4.1 shall be uncertificated shares represented by book-entry transfer (“Book-Entry Shares”), and provided also that ownership of Uncertificated Shares, Company Shares is evidenced only by registration in the aggregate Merger Consideration that register of members of the holder has a right to receive under Section 2.5Company. The shares of Class A Common Stock constituting the Merger Consideration No interest will be in uncertificated book-entry form, unless a physical certificate is requested by the holder paid or is otherwise required under applicable Law. As a result accrued on any consideration payable upon due surrender of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect Certificates pursuant to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect provisions of the Clearwire Capital Stockthis Article IV.
(cd) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate is registered or in whose name the transferred Uncertificated Share is registeredshares are registered in the Company's register of members, as applicable, it will be a condition to the of such payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) that the Person requesting the such payment will pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or Uncertificated Share shares registered in the Company's register of members or will establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(de) After the First Effective Time, there will be no further registration of transfers of TRTL Class A Common Stock. From and after the First Effective Time, the holders of Certificates representing shares of Clearwire Capital StockTRTL Class A Common Stock outstanding immediately prior to the First Effective Time will cease to have any rights with respect to such shares of TRTL Class A Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the First Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent or TRTL Parent, they will be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, forth in this Article 2IV.
(ef) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months Conversion Shares or Company Shares one year after the Closing Date First Effective Time will be returned by the Exchange Agent to NewCothe Company, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock his or her Conversion Shares for the Merger Consideration in accordance with consideration payable upon due surrender of the Certificates pursuant to the provisions of this Section 2.6 before Article IV prior to that date time will thereafter look only to NewCo the Company for payment delivery of consideration payable upon due surrender of the Merger Consideration, and any dividends and distributions with respect Certificates pursuant to the Merger Consideration, provisions of this Article IV in respect of those shares without any interest thereonsuch holder’s Conversion Shares or Company Shares, as applicable. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo the Company will not be liable to any holder of shares of Clearwire Capital Stock Conversion Shares or Company Shares for any amounts properly paid consideration payable upon due surrender of the Certificates pursuant to the provisions of this Article IV delivered to a public official under pursuant to applicable abandoned property, escheat or similar property Laws. Any amounts consideration payable upon due surrender of the Certificates pursuant to the provisions of this Article IV remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (Conversion Shares or that earlier date, Company Shares immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeAuthority will, to the extent permitted by applicable Law, become the property of NewCo, the Company free and clear of any claims or interest of any Person previously entitled thereto.
(g) Dividends payable by the Company with respect to Company Ordinary Shares will only be paid to holders of Company Ordinary Shares as registered on the register of members of the Company at the time that such dividends are declared.
(h) The Company and the Exchange Agent shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any Person such amounts as the Company or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under the Code or any other provision of federal, state, local or foreign Tax Law. To the extent that amounts are so withheld (and paid to the applicable Governmental Authority) by the Company or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person to whom such consideration would otherwise have been paid.
(i) In the event any Certificates relating to Conversion Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, such consideration as may be required pursuant to Article IV and any dividends or distributions payable pursuant to Article IV; provided, however, that the Company may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificates to deliver an agreement of indemnification in form reasonably satisfactory to the Company, or, if reasonably required by the Company, a bond in such reasonable sum as the Company may direct, as indemnity against any claim that may be made against the Company or the Exchange Agent in respect of such Certificates alleged to have been lost, stolen or destroyed.
Appears in 1 contract
Samples: Business Combination Agreement (Terrapin 3 Acquisition Corp)
Surrender and Payment. (a) Clearwire has appointed Prior to the Exchange Agent Effective Time, Comcast shall appoint an agent (the "EXCHANGE AGENT") for the purpose of exchanging the Merger Consideration for:
(i) exchanging certificates representing shares of Clearwire Capital MediaOne Common Stock (the “Certificates”"COMMON CERTIFICATES") or
for the Common Stock Consideration, (ii) uncertificated exchanging certificates representing shares of Clearwire Capital MediaOne Series C Preferred Stock (the “Uncertificated Shares”"SERIES C CERTIFICATES") for the Series C Consideration, (iii) exchanging certificates representing shares of MediaOne Series D Preferred Stock (the "SERIES D CERTIFICATES") for the Series D Consideration and (iv) exchanging certificates representing shares of MediaOne Series E Preferred Stock (the "SERIES E CERTIFICATES", and together with the Common Certificates, the Series C Certificates and the Series D Certificates, the "CERTIFICATES") for the Series E Consideration. At the Effective Time, Comcast will make available to the Exchange Agent, as needed, (i) the Common Stock Consideration to be paid in respect of shares of MediaOne Common Stock, (ii) the Series C Consideration to be paid in respect of shares of MediaOne Series C Preferred Stock, (iii) the Series D Consideration to be paid in respect of shares of MediaOne Series D Preferred Stock, (iv) the Series E Consideration to be paid in respect of shares of MediaOne Series E Preferred Stock and (v) cash in an amount required to be paid pursuant to Section 3.02(f). The Common Stock Consideration, Series C Consideration, Series D Consideration, Series E Consideration and cash referred to in items (i) through (v) are referred to herein as the "EXCHANGE FUND". Promptly after the Closing DateEffective Time, NewCo Comcast will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital MediaOne Common Stock, MediaOne Series C Preferred Stock, MediaOne Series D Preferred Stock or MediaOne Series E Preferred Stock at the Effective Time Time, a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) Upon surrender to the Exchange Agent of a its Certificate, together with a properly completed letter of transmittal, or
(i) each holder of shares of MediaOne Common Stock (the "MEDIAONE COMMON HOLDERS") will be entitled to receive the Common Stock Consideration in respect of the shares of MediaOne Common Stock represented by its Certificate; (ii) receipt each holder of an “agent’s message” by shares of MediaOne Series C Preferred Stock (the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request"MEDIAONE SERIES C HOLDERS") in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right will be entitled to receive under Section 2.5. The the Series C Consideration in respect of the shares of Class A Common MediaOne Series C Preferred Stock constituting represented by its Certificate; (iii) each holder of shares of MediaOne Series D Preferred Stock (the Merger Consideration "MEDIAONE SERIES D HOLDERS") will be entitled to receive the Series D Consideration in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result respect of the Mergershares of MediaOne Series D Preferred Stock represented by its Certificate and (iv) each holder of shares of MediaOne Series E Preferred Stock (the "MEDIAONE SERIES E HOLDERS") will be entitled to receive the Series E Consideration in respect of the shares represented by its Certificate. In addition, at each such MediaOne Common Holder, MediaOne Series C Holder, MediaOne Series D Holder and MediaOne Series E Holder will be entitled to receive any dividends and distributions payable pursuant to Section 3.02(f). Until so surrendered, each such Certificate shall represent after the Effective Time, for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stockpurposes, except only the right to receive the Merger Common Stock Consideration, the Series C Consideration, the Series D Consideration payable in respect of or the Clearwire Capital StockSeries E Consideration, as the case may be.
(c) If any portion of the Merger Common Stock Consideration, the Series C Consideration, the Series D Consideration or the Series E Consideration is to be paid to a Person other than the Person in whose name the Certificate so surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
(i) either the surrendered that such Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the Certificate or Uncertificated Share such Certificate, or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital MediaOne Common Stock, MediaOne Series C Preferred Stock, MediaOne Series D Preferred Stock or MediaOne Series E Preferred Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Common Stock Consideration, the Series C Consideration, the Series D Consideration payable in respect of or the Clearwire Capital Stock Series E Consideration provided for, and in accordance with the procedures set forth, in this Article 23.
(e) Any portion of the Merger Consideration Exchange Fund made available to the Exchange Agent under pursuant to Section 2.6(a3.02(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months MediaOne Common Holders, MediaOne Series C Holders, MediaOne Series D Holders and MediaOne Series E Holders one year after the Closing Date will Effective Time shall be returned to NewCoComcast, on upon demand. Any , and any such holder who has not exchanged its shares of Clearwire Capital Stock for the Merger Common Stock Consideration, the Series C Consideration, the Series D Consideration or the Series E Consideration in accordance with this Section 2.6 before 3.02 prior to that date will time shall thereafter look only to NewCo Comcast for payment of the Merger Considerationsuch consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Comcast shall not be liable to any holder of shares of Clearwire Capital Stock MediaOne Common Holder, MediaOne Series C Holder, MediaOne Series D Holder or MediaOne Series E Holder for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six the MediaOne Common Holders, MediaOne Series C Holders, MediaOne Series D Holders and MediaOne Series E Holders five years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Lawlaw, the property of NewCo, Comcast free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to any Comcast Securities constituting part of the Common Stock Consideration, the Series C Consideration, the Series D Consideration or the Series E Consideration and, in the case of the Common Certificates and Series D Certificates, no cash payment in lieu of fractional shares as provided in Section 3.06, shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in Section 3.02(b). Following such surrender, there shall be paid, without interest, to the Person in whose name such Comcast Securities have been registered, (i) at the time of such surrender, (A) in the case of Common Certificates and Series D Certificates, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.06, and (B) 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, with respect to such Comcast Securities, 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 surrender, and with a payment date subsequent to surrender, payable with respect to such Comcast Securities.
(g) Any portion of the Series C Consideration or the Series E Consideration made available to the Exchange Agent pursuant to Section 3.02(a) to pay for shares of MediaOne Series C Preferred Stock or MediaOne Series E Preferred Stock for which appraisal rights have been perfected shall be returned to Comcast upon demand.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent (the “Exchange Agent Agent”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Company Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Company Stock (the “Uncertificated Shares”). Promptly after On or prior to the Closing Date, NewCo will Parent shall deposit with the Exchange Agent, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. As soon as practicable after the Effective Time (and in any event no later than five Business Days after the Effective Time), Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Stock at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Company Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of the holder has Company Stock represented by a right to receive under Section 2.5Certificate or Uncertificated Share. The shares of Class A Common Parent Stock constituting the part of such Merger Consideration will Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by the a holder of shares of Company Stock or is otherwise required under applicable Applicable Law. As a result of Until so surrendered or transferred, as the Mergercase may be, at each such Certificate or Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of and the Clearwire Capital Stockright to receive any dividends or other distributions pursuant to Section 2.03(f).
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to deposited with the Exchange Agent under pursuant to Section 2.6(a2.03(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve 12 months after the Closing Date will Effective Time shall be returned to NewCoParent upon demand, on demand. Any and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect thereto pursuant to the Merger ConsiderationSection 2.03(f), in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six two years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) 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 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 and in addition to the applicable amount payable pursuant to this Article 2, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled 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 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.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Exchange Agent Effective Time, ServiceMaster shall appoint an agent reasonably acceptable to LandCare (the "EXCHANGE AGENT") for the purpose of exchanging certificates representing Shares for the Merger Consideration. Immediately following the Effective Time, ServiceMaster shall deposit with the Exchange Agent, for the benefit of the holders of certificates formerly representing Shares, the Merger Consideration for:
(iissuable pursuant to Section 1.2(a)(iii) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated in exchange for outstanding Shares”). Promptly after the Closing DateEffective Time, NewCo ServiceMaster will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Shares at the Effective Time (i) a letter of transmittal and instructions that will for use in such exchange (which shall specify that delivery of the delivery will Merger Consideration shall be effected, and risk of loss and title will to the certificates representing ServiceMaster Common Stock and LandCare Common Stock shall pass, only on upon proper delivery deliver of the Certificates or transfer of the Uncertificated certificates formerly representing Shares to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the certificates formerly representing Shares in exchange for the Merger Consideration.
(b) Each holder of shares of Clearwire Capital Stock will be entitled Shares that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates formerly representing such Shares, together with a properly completed and duly executed letter of transmittal, or
(ii) receipt of an “agent’s message” transmittal covering such Shares and such other documents as may reasonably be required by the Exchange Agent (or other evidenceAgent, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right entitled to receive the Merger Consideration payable in respect of such Shares and any dividends payable pursuant to Section 1.3(f). Until so surrendered, each such certificate shall, after the Clearwire Capital StockEffective Time, represent for all purposes only the right to receive the Merger Consideration and any dividends payable pursuant to Section 1.3(f), without interest.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the Person registered holder of the Shares formerly represented by the certificate or certificates surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share is registeredexchange therefor, it will shall be a condition to such payment that the payment that
(i) either the certificate or certificates so surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of MA111ECA.WPD - 4 - such Shares represented by the Certificate certificate or Uncertificated Share certificates so surrendered or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payableapplicable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockShares. If, after the Effective Time, Certificates or Uncertificated certificates formerly representing Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 21.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a1.3(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months Shares one year after the Closing Date will Effective Time shall be returned to NewCoServiceMaster, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock his Shares for the Merger Consideration in accordance with this Section 2.6 before 1.3 prior to that date will time shall thereafter look only to NewCo ServiceMaster for payment of the Merger Consideration, Consideration and any dividends and distributions with respect payable pursuant to the Merger Consideration, Section 1.3(f) in respect of those shares without any interest thereonhis Shares. Regardless of Neither ServiceMaster, LandCare nor the preceding sentence, NewCo will not Exchange Agent shall be liable to any holder person in respect of any shares of Clearwire Capital Stock for ServiceMaster Common Stock, any amounts properly paid dividends or distributions with respect thereto or any cash in lieu of fractional shares of ServiceMaster Common Stock, in each case, delivered to a public official under pursuant to any applicable abandoned property, escheat or similar Lawslaw. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six If any certificate representing Shares shall not have been surrendered prior to two years after the Closing Date Effective Time (or that immediately prior to such earlier datedate on which any Merger Consideration, immediately before any dividends or distributions payable to the time when holder of such certificate or any cash payable to the amounts holder of such certificate formerly representing LandCare Common Stock pursuant to this Article 1, would otherwise escheat to or become the property of any Governmental Authority) will becomeEntity (as hereinafter defined)), any such Merger Consideration, dividends or distributions in respect of such certificate or such cash shall, to the extent permitted by applicable Lawlaw, become the property of NewCothe Surviving Corporation, free and clear of any all claims or interest of any Person person previously entitled thereto.
(f) No dividends or other distributions with respect to ServiceMaster Common Stock issued in connection with the Merger shall be paid to the holder of any unsurrendered certificates formerly representing Shares until such certificates are surrendered as provided in this Section 1.3. Subject to the effect of applicable laws, following the surrender of such certificates, there shall be paid, without interest, to the record holder of ServiceMaster Common Stock issued in exchange therefor at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time payable prior to or on the date of such surrender with respect to such whole shares of ServiceMaster Common Stock and not previously paid, less the amount of any withholding taxes which may be required thereon.
(g) The Exchange Agent shall invest any cash deposited with the Exchange Agent, as directed by ServiceMaster, on a daily basis. Any interest and other income resulting from such investments shall be paid to ServiceMaster.
(h) If any certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the 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 certificate, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed certificate the Merger Consideration and, if applicable, any unpaid dividends and distributions on shares of ServiceMaster Common Stock deliverable in respect thereof and any cash in lieu of fractional shares, in each case, due to such person pursuant to this Agreement.
Appears in 1 contract
Samples: Plan of Reorganization and Agreement and Plan of Merger (Landcare Usa Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent will appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Company Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Company Stock (the “Uncertificated Shares”). As of or prior to the Effective Time, Parent will deposit with, or cause to be deposited with, the Exchange Agent the aggregate Merger Consideration to be paid pursuant to Section 2.02. Promptly after the Closing DateEffective Time (but not later than three Business Days after the Effective Time), NewCo Parent will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Stock at as of the Effective Time a letter of transmittal (which will be in customary form and subject to the review and reasonable approval of the Company prior to the Effective Time) and instructions that (which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in effecting the surrender of Certificates or Uncertificated Shares in exchange for the Merger Consideration.
(b) Each holder of shares of Clearwire Capital Company Stock that have been converted into the right to receive the Merger Consideration will be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result respect of the MergerCompany Stock represented by such Certificate or Uncertificated Share. Until so surrendered or transferred, at as the case may be, each such Certificate or Uncertificated Share will represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive such Merger Consideration. No interest will be paid or accrued on the Merger Consideration cash payable in respect upon the surrender or transfer of the Clearwire Capital Stocksuch Certificate or Uncertificated Share.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the such payment that
that (i) either the surrendered such Certificate will be is properly endorsed or will otherwise be in proper form for transfer or the applicable such Uncertificated Share will be is properly transferred, and
transferred and (ii) the Person requesting the such payment will pay pays to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Uncertificated Shares in accordance with the terms hereof will be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Stock formerly represented by such Certificate or Uncertificated Shares. At the Effective Time, the stock transfer books of the Company will be closed and, after the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the aggregate Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve nine months after the Closing Date Effective Time will be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time may thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo Parent will not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) Authority will become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the aggregate Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares will be returned to Parent, upon demand.
(g) The Surviving Corporation will pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Stock for the Merger Consideration. The Surviving Corporation will also pay all transfer or other Taxes required to be paid as a result of the surrender of Certificates or the transfer of Uncertificated Shares in exchange for the Merger Consideration, except as otherwise provided by Section 2.03(c).
Appears in 1 contract
Surrender and Payment. 2.3.1. Prior to the Effective Time, TLC shall appoint an agent reasonably acceptable to LVCI (athe "Exchange Agent") Clearwire has appointed for the purpose of exchanging certificates representing LVCI Common Shares ("Old Certificates"). As of the Effective Time, Merger Subsidiary shall deposit with the Exchange Agent for the purpose benefit of exchanging the Merger Consideration for:
(i) holders of LVCI Common Shares for exchange in accordance with this Section 2.3, through the Exchange Agent, certificates representing shares of Clearwire Capital Stock the TLC Common Shares issuable pursuant to Section 2.2 in exchange for outstanding LVCI Common Shares (the “"New Certificates”) or").
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)2.3.2. Promptly after the Closing DateEffective Time, NewCo TLC will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock LVCI Common Shares at the Effective Time a letter of transmittal and instructions that will reasonably acceptable to LVCI for use in exchanging such holder's Old Certificates for the New Certificates (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Old Certificates or transfer of the Uncertificated Shares to the Exchange Agent).
(b) 2.3.3. Each holder of shares of Clearwire Capital Stock will be entitled LVCI Common Shares that have been converted into a right to receivereceive TLC Common Shares, on
(i) upon surrender to the Exchange Agent of a CertificateOld Certificates, together with a properly completed letter of transmittaltransmittal covering such Old Certificates, or
shall receive in exchange therefor (iia) receipt that number of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the whole TLC Common Shares which such holder has a the right to receive under pursuant to Section 2.2; (b) cash in lieu of fractional shares pursuant to Section 2.5; and (c) any dividends or distributions the payout date for which shall have occurred, and the Old Certificates so surrendered shall be cancelled. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry formUntil so surrendered, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergereach Old Certificate shall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stockpurposes, except only the right to receive upon such surrender the Merger Consideration payable New Certificates representing TLC Common Shares, cash in respect lieu of the Clearwire Capital Stockany fractional TLC Common Shares as contemplated by this Section 2.3 and Section 2.5 and any dividends or distributions.
(c) 2.3.4. If any portion of the Merger Consideration is TLC Common Shares are to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment issued to a Person other than the registered holder of the Certificate LVCI Common Shares represented by the Old Certificates surrendered in exchange therefor, it shall be a condition to such issuance that the Old Certificates shall be properly endorsed or Uncertificated Share otherwise be in proper form for transfer and that the Person requesting such issuance shall pay to the Exchange Agent any transfer tax or other taxes required as a result of such issuance to a Person other than the registered holder of such LVCI Common Shares or establish to the reasonable satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) 2.3.5. At the Effective Time, holders of LVCI Common Shares shall cease to be, and shall have no rights as, stockholders of LVCI, other than the right to receive any dividend or other distribution with respect to such LVCI Common Shares with a record date occurring prior to the Effective Time and the consideration provided under this Article 2. After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockLVCI Common Shares. If, after the Effective Time, Old Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock New Certificates as provided for, and in accordance with the procedures set forth, in this Article 2.
(e) 2.3.6. Any portion of the Merger Consideration New Certificates made available to the Exchange Agent under pursuant to Section 2.6(a) 2.3.1 that remains remain unclaimed by the holders of shares of Clearwire Capital Stock twelve LVCI Common Shares six months after the Closing Date will Effective Time shall be returned to NewCoTLC, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration his or her LVCI Common Shares in accordance with this Section 2.6 before 2.3 prior to that date will time shall thereafter look only to NewCo for payment of TLC to exchange such LVCI Common Shares. Notwithstanding the Merger Considerationforegoing, the Surviving Corporation and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will TLC shall not be liable to any holder of shares of Clearwire Capital Stock LVCI Common Shares for any amounts properly paid amount paid, or any TLC Common Shares delivered to a public official under pursuant to applicable abandoned property, escheat or similar property Laws. Any TLC Common Shares or amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six LVCI Common Shares two years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeshall, to the extent permitted by applicable Law, become the property of NewCo, TLC free and clear of any claims or interest of any Person previously entitled thereto.
2.3.7. No dividends or other distributions on TLC Common Shares shall be paid to the holder of any unsurrendered Old Certificates until such Old Certificates are surrendered as provided in this Section. Upon such surrender, there shall be paid, without interest, to the Person in whose name the New Certificates representing the TLC Common Shares into which such shares were converted are registered, all dividends and other distributions paid in respect of such TLC Common Shares on a date subsequent to, and in respect of a record date after, the Effective Time.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Exchange Agent Effective Time, MAI shall appoint its stock transfer agent as agent (the "EXCHANGE AGENT") for the purpose of exchanging certificates representing Shares for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly after the Closing DateEffective Time (but in any event within five (5) business days thereafter), NewCo MAI will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Shares at the Effective Time (i) a letter of transmittal and instructions that will for use in such exchange (which shall specify that delivery of the delivery will Merger Consideration shall be effected, and risk of loss and title will to the certificates representing DHS Common Stock shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent), and (ii) instructions for use in effecting the surrender of the certificates representing Shares in exchange for the certificates representing MAI Common Stock constituting Merger Consideration. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of certificates theretofore representing Shares for any amount which may be required to be paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
(b) Each holder of shares of Clearwire Capital Stock will be entitled Shares that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Shares, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated transmittal covering such Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right entitled to receive the Merger Consideration payable in respect of such Shares and any dividends payable pursuant to Section 1.03(f). Until so surrendered, each such certificate shall, after the Clearwire Capital StockEffective Time, represent for all purposes only the right to receive the Merger Consideration and any dividends payable pursuant to Section 1.03(f).
(c) If any portion of the certificate representing Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment delivered to a Person other than the registered holder of the Certificate Shares represented by the certificate or Uncertificated Share certificates surrendered in exchange therefor, it shall be a condition to the issuance of such certificate evidencing MAI Common Stock 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 payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of shares of MAI Common Stock to a Person other than the registered holder of such Shares represented by the certificate or certificates so surrendered or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payableapplicable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares Shares on the stock transfer book of Clearwire Capital StockDHS. If, after the Effective Time, Certificates or Uncertificated certificates representing Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 2.I.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months Shares one (1) year after the Closing Date will Effective Time shall be returned to NewCoMAI, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock his Shares for the Merger Consideration in accordance with this Section 2.6 before 1.03 prior to that date will time shall thereafter look only to NewCo MAI for payment of the Merger Consideration. Notwithstanding the foregoing, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will MAI shall not be liable to any holder of shares of Clearwire Capital Stock Shares for any amounts properly amount paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawsproperty laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six Shares seven (7) years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeshall, to the extent permitted by applicable Lawlaw, become the property of NewCo, MAI free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to MAI Common Stock issued in the Merger shall be paid to the holder of any unsurrendered certificates representing Shares until such certificates are surrendered as provided in this Section 1.03. Subject to the effect of applicable laws, following the surrender of such certificates, there shall be paid, without interest, to the record holder of the MAI Common Stock issued in exchange therefor at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time payable prior to or on the date of such surrender with respect to such whole shares of MAI Common Stock and not previously paid, less the amount of any withholding taxes which may be required thereon.
(g) In the event that any certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit (containing a standard form of indemnity) of the fact by the person claiming such certificate to be lost, stolen or destroyed, MAI will, after the Effective Time, issue in exchange for such lost, stolen or destroyed certificate the certificate evidencing shares of MAI Common Stock deliverable in respect thereof, as determined in accordance with this Article I. When authorizing such issue of the certificate of shares of MAI Common Stock in exchange therefor, MAI may, in its discretion and as a condition precedent to the issuance thereof, require (unless such requirement is waived by Gary Xxxx xx Brad Xxxxxx) xxe owner of such lost, stolen or destroyed certificate (unless such owner is an institutional
(h) Approval and adoption of this Agreement by the stockholders of DHS shall constitute, as an integral part of the Merger, ratification of the appointment of, and the reappointment of, said Exchange Agent.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Exchange Agent Effective Time, Parent shall appoint an agent (the “Paying Agent”) for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Company Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Company Stock (the “Uncertificated Shares”). Promptly after , in each case, for the Closing Date, NewCo will send, or will cause the Exchange Agent to send, aggregate Merger Consideration payable to each holder of shares of Clearwire Capital Company Stock. As promptly as practicable after the Effective Time (but in any event within one Business Day after the Closing Date), Parent shall deliver to the Paying Agent the cash necessary to pay the full amount of the Merger Consideration in respect of the Certificates and the Uncertificated Shares as such Certificates and the Uncertificated Shares are surrendered for payment pursuant to this Section 2.03. Promptly after the date of the Closing, Parent shall cause the Paying Agent to send to each Person who held of record shares of Company Stock at immediately prior to the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Company Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender of a Certificate to the Exchange Agent of a CertificatePaying Agent, together with a properly completed and validly executed letter of transmittaltransmittal and such other documents as may be required by the Paying Agent, or
or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of the shares of Company Stock represented by such Certificate or book entry and, upon payment therefor, such shares of Company Stock will be canceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificate or Uncertificated Share for the benefit of the holder has a of such 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 all purposes only the right to receive under Section 2.5. The shares of Class A Common Stock constituting the such Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will shall cease to have any rights with respect to the Clearwire Capital such shares of Company Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stockas otherwise provided herein or by Applicable Law.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Paying Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that the Tax such tax has been paid or is not payable.
(d) After From and after the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Paying Agent under pursuant to Section 2.6(a2.03(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve nine months after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo Parent, as general creditors thereof, for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Considerationthereto, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid over to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six two years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed At least five days prior to the Effective Time, the Company shall appoint an exchange agent (the “Exchange Agent Agent”) for the purpose of exchanging the Merger Consideration for:
aggregate: (i) certificates Preferred Merger Consideration for Share Certificates representing shares Preferred Shares, (ii) Election Share Consideration for the applicable Share Certificates and Election Forms and (iii) Common Share Consideration for Share Certificates representing Non-Electing Common Shares. At the Closing, Buyer or MergerCo shall deposit, or shall cause to be deposited with the Exchange Agent, (x) into a separate account established for the benefit of Clearwire Capital Stock the Stockholders (other than Electing Shareholders) (the “CertificatesExchange Fund”), by wire transfer of immediately available funds, an amount equal to the aggregate Closing Preferred Consideration, which Exchange Fund shall be increased in accordance with Section 2.11, by the aggregate amounts of all Additional Preferred Amounts and Common Share Amounts; and (y) or
(ii) uncertificated shares into a separate account established for the benefit of Clearwire Capital Stock the Electing Shareholders and/or the Holders of Preferred Shares by wire transfer of immediately available funds, an amount equal to the Total Election Amount (the “Uncertificated SharesElection Fund”). Promptly after the Closing Date, NewCo will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock at the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
(b) Each holder At the close of shares business on the day (the “Calculation Date”) which is one business day prior to the date on which the Closing is scheduled to occur, the president or vice president of Clearwire Capital Stock will be entitled finance of the Company shall deliver to receive, on
Buyer a certificate setting forth the Company’s calculations for and as of the Closing Date of (i) the Management Incentive Bonus Amount, Transaction Expenses (by payee), and Indebtedness, and (ii) the Closing Preferred Consideration and the Total Election Amount.
(c) Each Holder of Non-Electing Common Shares shall receive payments, upon surrender to the Exchange Agent of a Certificate, the applicable Share Certificates together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer any Common Share Amounts payable pursuant to Section 2.11 as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergertime of such surrender, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights it being understood that no payment with respect to Non-Electing Common Shares shall be made at the Clearwire Capital StockClosing, except and that each Holder of Non-Electing Common Shares shall only receive payment for Non-Electing Common Shares to the extent that Common Share Amounts become payable pursuant to Section 2.11. Payment of Common Share Amounts payable pursuant to Section 2.11 after the date of a Holder’s surrender of Share Certificates representing Non-Electing Common Shares will be made as promptly as possible after the time of the applicable distribution thereof. Until so surrendered, each such Share Certificate shall represent after the Effective Time for all purposes the right to receive the Common Share Consideration in respect thereof.
(d) Each Holder of Preferred Shares shall receive payments, upon surrender to the Exchange Agent of the applicable Share Certificates together with a properly completed letter of transmittal, in the following manner: (i) if such surrender of Share Certificates and letter of transmittal is made at or prior to the Closing, then such holder shall receive payment of the Closing Preferred Consideration, at the Closing; (ii) if such surrender of Share Certificates and letter of transmittal shall have been made after the Closing, then such holder shall receive payment of the Closing Preferred Consideration (plus any Additional Preferred Amounts payable pursuant to Section 2.11 and any payments payable to such Holder pursuant to Section 2.05(f) as of the time of such surrender); and (iii) payments of Additional Preferred Amounts payable pursuant to Section 2.11 and any payments payable to such Holder pursuant to Section 2.05(f) after the date of such surrender will be made as promptly as possible after the time upon which such amounts are payable. Until so surrendered, each such Share Certificate shall represent after the Effective Time for all purposes the right to receive the Preferred Merger Consideration.
(e) The Exchange Agent shall pay from the Election Fund within five days following the Election Deadline to each Electing Shareholder an amount equal to the Election Share Consideration payable for each Common Share owned by such holder as of the date of this Agreement. Such payment of the applicable Election Share Consideration shall be the only payment to the Electing Shareholders under this Agreement and the Electing Shareholders shall not be entitled to any Common Share Amounts. For the avoidance of doubt, no payment of Election Share Consideration shall be made in respect of any Share Certificate issued after the Clearwire Capital Stockdate of this Agreement.
(f) The amount, if any, remaining in the Election Fund after the Exchange Agent shall have paid all Election Share Consideration to the Electing Shareholders as provided in subsection (e) above, shall be promptly paid Pro Rata to the Holders of Preferred Shares.
(g) No later than five business days prior to the date on which the Closing is scheduled to occur, the Company shall send or cause the Exchange Agent to send to each Stockholder a letter of transmittal for use in exchanging such Common Shares or Preferred Shares for the applicable Common Share Consideration pursuant to subsection (c) above, Preferred Merger Consideration pursuant to subsection (d) above or Election Share Consideration pursuant to subsection (e) above.
(h) If any portion of the applicable Common Share Consideration, Election Share Consideration or Preferred Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Share Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to such payment that the payment that
(i) either the Share Certificate so surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Share Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(di) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockCommon Shares or Preferred Shares. If, after the Effective Time, Share Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent and/or the Surviving Corporation, they will shall be canceled and exchanged for the applicable Common Share Consideration, Election Share Consideration or Preferred Merger Consideration payable in respect Consideration, as applicable pursuant to the terms hereof. For purposes of such exchange, the canceled Common Shares and Preferred Shares shall be deemed surrendered pursuant to Section 2.04(b), Section 2.05(c) or Section 2.05(d) as of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available date presented to the Exchange Agent under Section 2.6(aor the Surviving Corporation, as applicable.
(j) Any amount in the Exchange Fund (and any interest or other income earned thereon) that remains unclaimed by the holders Stockholders following a period of shares of Clearwire Capital Stock twelve 18 months after immediately following the Closing Date will Effective Time shall be returned by the Exchange Agent to NewCothe Surviving Corporation, on demand. Any holder and any Stockholder who has not exchanged shares of Clearwire Capital Stock its Common Shares or Preferred Shares for the applicable Common Share Consideration or Preferred Merger Consideration in accordance with this Section 2.6 before that date will prior to such time shall thereafter look only to NewCo the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares thereof without any interest thereon. Regardless .
(k) At the Closing, Buyer shall cause the Surviving Corporation, in accordance with the provisions of the preceding sentenceManagement Incentive Bonus Plan as in effect as of the date hereof, NewCo will not to: (i) pay to each Participant its share of the Management Incentive Bonus Amount (other than the Initial Escrowed Bonus Amount) and (ii) place in escrow the Initial Escrowed Bonus Amount pursuant to the Management Escrow Agreement. If there shall be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (any distribution from the Escrow Account other than to Buyer or that earlier dateto the Stockholders’ Representative pursuant to Section 2.12(c), immediately before then promptly after such distribution the time when Surviving Corporation shall, in accordance with the amounts would otherwise escheat provisions of the Management Incentive Bonus Plan, pay to or become property each Participant its share of the Additional Management Incentive Bonus Amount payable in respect of any Governmental Authority) will becomesuch distribution in accordance with Section 2.11, provided that any such distribution of an Additional Management Incentive Bonus Amount that then constitutes an Additional Escrowed Bonus Amount shall be placed in escrow pursuant to the Management Escrow Agreement. If and to the extent permitted by applicable Lawany of the Escrowed Bonus Amount is forfeited as a result of the termination of the employment of Mr. Xxxxx Xxxxxxxxx prior to the vesting thereof, the property such amounts shall be distributed to Holders of NewCoCommon Shares, free Holders of Preferred Shares, and clear holders of any claims or interest of any Person previously entitled theretoIn-the-Money Vested Options in accordance with Section 2.11 hereof.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Elcotel shall appoint an agent reasonably satisfactory to TSG (the "Exchange Agent Agent") for the purpose of exchanging certificates representing Shares for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly after the Closing DateEffective Time (but in any event within five business days thereafter), NewCo Elcotel will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Shares at the Effective Time (i) a letter of transmittal and instructions that will for use in such exchange (which shall specify that delivery of the delivery will Merger Consideration shall be effected, and risk of loss and title will to the certificates representing TSG Common Stock shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent.) and (ii) instructions for use in effecting the surrender of the certificates representing Shares in exchange for the certificates representing Elcotel Common Stock and cash in lieu of fractional shares of Elcotel Common Stock. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of certificates theretofore representing Shares for any amount which may be required to be paid to a public official pursuant to any applicable abandoned property, escheat or similar law;
(b) Each holder of shares of Clearwire Capital Stock will be entitled Shares that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Shares, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated transmittal covering such Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right entitled to receive the Merger Consideration payable in respect of such Shares and any dividends payable pursuant to Section 1.03(f). Until so surrendered, each such certificate shall, after the Clearwire Capital Stock.Effective Time, represent for all purposes only the right to receive the Merger Consideration and any dividends payable pursuant to Section 1.03(f) and the holder thereof shall not be entitled to vote the Elcotel Common Stock until such certificate is surrendered;
(c) If any portion of the certificate representing Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment delivered to a Person other than the registered holder of the Certificate Shares represented by the certificate or Uncertificated Share certificates surrendered in exchange therefor, it shall be a condition to the issuance of such certificate evidencing Elcotel Common Stock 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 payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of shares of Elcotel Common Stock to a Person other than the registered holder of such Shares represented by the certificate or certificates so surrendered or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.applicable;
(d) After the Effective Time, there will shall be no further registration of transfers of shares Shares on the stock transfer book of Clearwire Capital StockTSG. If, after the Effective Time, Certificates or Uncertificated certificates representing Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 2.I;
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve Shares six months after the Closing Date will Effective Time shall be returned to NewCoElcotel, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock his Shares for the Merger Consideration in accordance with this Section 2.6 before 1.03 prior to that date will time shall thereafter look only to NewCo Elcotel for payment of the Merger Consideration. Notwithstanding the foregoing, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will Elcotel shall not be liable to any holder of shares of Clearwire Capital Stock Shares for any amounts properly amount paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawsproperty laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six Shares seven years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeshall, to the extent permitted by applicable Lawlaw, become the property of NewCo, Elcotel free and clear of any claims or interest of any Person previously entitled thereto;
(f) No dividends or other distributions with respect to Elcotel Common Stock issued in the Merger shall be paid to the holder of any unsurrendered certificates representing Shares until such certificates are surrendered as provided in this Section 1.03. Subject to the effect of applicable laws, following the surrender of such certificates, there shall be paid, without interest, to the record holder of the Elcotel Common Stock issued in exchange therefor at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time payable prior to or on the date of such surrender with respect to such whole shares of Elcotel Common Stock and not previously paid, less the amount of any withholding taxes which may be required thereon;
(g) In the event any certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of the fact by the person claiming such certificate to be lost, stolen or destroyed, Elcotel will, after the Effective Time, issue in exchange for such lost, stolen or destroyed certificate the certificate evidencing shares of Elcotel Common Stock deliverable in respect thereof, as determined in accordance with this Article I. When authorizing such issue of the certificate of shares of Elcotel Common Stock in exchange therefor, Elcotel may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate to give Elcotel a bond in such sum as it may direct as indemnity against any claim that may be made against Elcotel with respect to the certificate alleged to have been lost, stolen or destroyed; and
(h) Approval and adoption of this Agreement by the stockholders of TSG shall constitute, as an integral part of the Merger, ratification of the appointment of, and the reappointment of, said Exchange Agent.
Appears in 1 contract
Samples: Merger Agreement (Elcotel Inc)
Surrender and Payment. (a) Clearwire has appointed At least 10 Business Days prior to the Closing Date, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) and enter into an exchange agent agreement, reasonably acceptable to the Company, with such agent for the purpose of exchanging for the Merger Consideration for:
as promptly as practicable after the Effective Time (i) certificates representing shares of Clearwire Capital Stock Company Common Shares (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Stock Company Common Shares (the “Uncertificated Shares”). Promptly Prior to the Effective Time, Parent shall make available to the Exchange Agent the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. As promptly as practicable after the Closing DateEffective Time (but no later than two Business Days thereafter), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Company Common Shares at the Effective Time a letter of transmittal and instructions that (which will be in a form reasonably acceptable to the Company and finalized prior to the Effective Time and which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Stock Company Common Shares that have been converted into the right to receive the Merger Consideration will be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has payable for each Company Common Share represented by a right to receive under Section 2.5Certificate or for each Uncertificated Share (less any applicable withholding). The shares Parent Common Shares constituting part of Class A Common Stock constituting the such Merger Consideration will Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by the a holder of Company Common Shares or is otherwise required under applicable Applicable Law. As a result of Until so surrendered or transferred, as the Mergercase may be, at each such Certificate or Uncertificated Share will represent from and after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration Consideration. No interest will be paid or will accrue on the cash payable in respect upon surrender of the Clearwire Capital Stockany such Company Common Shares.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After At the Effective Time, the share transfer books of the Company will be closed, and there will be no further registration of transfers of shares of Clearwire Capital StockCompany Common Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve Company Common Shares 12 months after the Closing Date Effective Time will be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock any Company Common Share for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date time will thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those shares such Company Common Share without any interest thereonthereon (subject to abandoned property escheat or similar Applicable Law). Regardless Notwithstanding the foregoing, none of Parent, the preceding sentence, NewCo Surviving Corporation or the Exchange Agent will not be liable to any holder of shares of Clearwire Capital Stock Company Common Shares for any amounts properly paid Merger Consideration delivered to a public official under Governmental Authority pursuant to any applicable abandoned property, escheat or similar LawsApplicable Law. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts If any Certificate shall not have been surrendered prior to such date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Authority) will become, then any such Merger Consideration will, to the extent permitted by applicable Applicable Law, become the property of NewCoParent, free and clear of any all claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Common Shares 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 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 registered, at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled 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 surrender with respect to such securities.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Company Stock (the “Certificates”) or
if any or (ii) uncertificated shares of Clearwire Capital Company Stock (the “Uncertificated Shares”). Prior to the Effective Time, Parent shall make available to the Exchange Agent the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. Such funds may be invested by the Exchange Agent as directed by Parent; 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 stockholders 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 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Standard & Poor’s Corporation or Xxxxx’x Investors Service, Inc., respectively. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as Parent directs. Promptly after the Closing DateEffective Time (but not later than two Business Days thereafter), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Stock at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange, as applicable.
(b) Each holder of shares of Clearwire Capital Company Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result respect of the MergerCompany Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, at as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve months after the Closing Date will Effective Time shall be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.03 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Applicable Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six two years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Prior to the Effective Time, Parent and the Company shall cooperate in good faith to establish customary procedures with the Exchange Agent with respect to the prompt transmission to the Depository Trust Company (“DTC”) or its nominee of immediately available funds of an aggregate amount of Merger Consideration with respect to the number of shares of Company Stock held of record by DTC or such nominee immediately prior to the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Chemtura CORP)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint (subject to the Company's prior approval not to be unreasonably withheld or delayed) a commercial bank or trust company (the "Exchange Agent Agent") for the purpose of exchanging Certificates or Uncertificated Company Shares for the Merger Consideration or the consideration described in Section 3.05, as applicable. As of the Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of Company Shares (other than Company Excluded Shares), for exchange in accordance with this Section through the Exchange Agent, securities representing shares of Parent Common Stock issuable and payable pursuant to Section 3.01 or Section 3.05, as applicable, in exchange for outstanding Company Shares (other than Company Excluded Shares) in respect of the Stock Consideration to be paid in the Merger or the consideration described in Section 3.05, as applicable, the cash necessary to pay for the aggregate Cash Consideration to be paid pursuant to this Article 3 and, after the Effective Time, if applicable, any cash and dividends or other distribution with respect to the Parent Common Stock to be issued or to be paid pursuant to this Article 3 (together, the "Exchange Fund"). If a Dissenting Stockholder effectively withdraws its demand for:
, or loses its rights to, appraisal pursuant to Section 262 of the DGCL with respect to any Dissenting Shares, (i) certificates representing such shares of Clearwire Capital Company Common Stock (the “Certificates”) or
shall cease to be Company Excluded Shares and (ii) uncertificated Parent shall make available or cause to be made available to the Exchange Agent (A)(1) additional funds in an amount equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the Cash Consideration and (2) additional shares of Clearwire Capital Parent Common Stock equal to the product of (x) the “Uncertificated Shares”)number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the Stock Consideration or (B) additional shares of Parent Common Stock equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the consideration described in Section 3.05, as applicable. Promptly after the Closing DateEffective Time (and in any event within three business days), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Company Shares at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Company Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(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 Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration Company Shares that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except been converted into the right to receive the Merger Consideration payable or the consideration described in Section 3.05, as applicable, shall be entitled to receive, upon delivery of the Ownership Evidence, the Merger Consideration or the consideration described in Section 3.05, as applicable, in respect of the Clearwire Capital StockCompany Shares represented by a Certificate or Uncertificated Company Share and any cash and dividends or other distributions with respect to the Parent Common Stock to be issued or to be paid pursuant to the last sentence of Section 3.01(a). Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Company Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration or the consideration described in Section 3.05, as applicable.
(c) If any portion of the Merger Consideration or the consideration described in Section 3.05, as applicable, is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Company Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Company Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Company Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After The stock transfer books of the Company shall be closed immediately upon the Effective Time, Time and there will shall be no further registration of transfers of shares Company Shares thereafter on the records of Clearwire Capital Stockthe Company. If, after the Effective Time, Certificates or Uncertificated Company Shares are presented to NewCoParent, the Surviving Corporation or the Exchange Agent for any reason, they will shall be canceled and exchanged for the Merger Consideration payable or the consideration described in respect of Section 3.05, as applicable, and cash, dividends or other distributions to the Clearwire Capital Stock extent provided for, and in accordance with the procedures set forth, in this Article 23.
(e) Any portion of the Merger Consideration Exchange Fund made available to the Exchange Agent under pursuant to Section 2.6(a3.02(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve Company Shares six months after the Closing Date will Effective Time shall be returned delivered to NewCoParent or otherwise on the instruction of Parent, on demand. Any and any such holder who has not exchanged shares of Clearwire Capital Stock Company Shares for the Merger Consideration in accordance with this Section 2.6 before 3.01 or the consideration described in Section 3.05, as applicable, prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger ConsiderationConsideration or the consideration described in Section 3.05, as applicable, and any cash, dividends and distributions with respect to the Merger Considerationthereto, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Stock Company Shares for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six Company Shares two years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Whenever a dividend or other distribution is declared by Parent in respect of Parent Common Stock, the record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all shares of Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions in respect of such Parent Common Stock shall be paid to any holder of any unsurrendered or undelivered Ownership Evidence until such Ownership Evidence is provided to the Exchange Agent or Parent in accordance with this Article 3. Subject to the effect of Applicable Laws, following surrender or delivery, as applicable, of any such Ownership Evidence to the Exchange Agent or Parent in accordance with this Article 3, there shall be issued and/or paid to the holder of the Ownership Evidence representing whole shares of Parent Common Stock issued in exchange therefor, without interest, (A) at the time of such surrender or delivery, as the case may be, the dividends or other distributions with a record date at or after the Effective Time and a payment date on or prior to the date of issuance of such whole shares of Parent Common Stock and not previously paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to such whole shares of Parent Common Stock with a record date at or after the Effective Time on the Closing Date but with a payment date subsequent to surrender or delivery and not previously paid.
(g) Notwithstanding any other provision of this Agreement, no fractional shares of Parent Common Stock will be issued in respect of any Company Shares and any holder of Company Shares entitled to receive a fractional share of Parent Common Stock but for this Section 3.02(g) shall be entitled to receive in lieu thereof an amount in cash (without interest) determined by multiplying such fraction (rounded to the nearest one-hundredth of a share) by the Closing Parent Common Stock Price (the aggregate amount of cash required to be paid in lieu of fractional shares of Parent Common Stock, the "Aggregate Fractional Share Consideration").
(h) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article 3 such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of any Applicable Law, including federal, state, local or foreign Tax law. If the Exchange Agent, Parent or the Surviving Corporation, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which the Exchange Agent, Parent or the Surviving Corporation, as the case may be, made such deduction and withholding.
(i) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond in the form customarily required by Parent as indemnity against any claim that may be made against it with respect to such Certificate, and the submission of such other documentation as Parent customarily requires for the replacement of lost, stolen or destroyed certificates, the Exchange Agent (or Parent pursuant to Section 3.02(e)) will deliver a certificate evidencing the ownership of such number of shares of Parent Common Stock and/or any cash, dividends and other distributions in respect thereof issuable and/or payable in exchange for such lost, stolen or destroyed Certificate pursuant to this Agreement.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Agribrands and Ralcorp shall cause Holding Company to appoint an agent as designated by Agribrands and Ralcorp (the "Exchange Agent Agent") for the purpose of exchanging the Certificates --------------- for the Merger Consideration. Immediately after the Effective Time, Agribrands and Ralcorp shall cause Holding Company to deposit with or make available to the Exchange Agent the Merger Consideration for:
(i) certificates representing to be paid in respect of the shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares "Exchange Fund"). If deposited, upon receipt, the Exchange Agent will invest --------------- the cash portion of Clearwire Capital Stock (the “Uncertificated Shares”)Exchange Fund in United States government securities maturing at the Election Deadline or such other investments as Holding Company may direct. Promptly after the Closing DateEffective Time, NewCo Holding Company will send, or will cause the Exchange Agent to send, (A) to each record holder of shares of Clearwire Capital Agribrands Common Stock and Ralcorp Common Stock, at the Effective Time Time, a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
) for use in such exchange, and (bB) Each to each record holder of shares of Clearwire Capital Agribrands Common Stock will and Ralcorp Common Stock, an election form (the "Election Form") providing for such holders ------------- to make a Stock Election or a Cash Election. Any Stock Election or Cash Election shall be entitled validly made only if the Exchange Agent shall have received by 5:00 p.m., St. Louis time, on a date (the "Election Deadline") to receivebe mutually ----------------- agreed upon by Agribrands and Ralcorp (which date shall not be later than the twentieth Business Day after the Effective Time), on
an Election Form properly completed and executed (iwith the signature or signatures thereon guaranteed to the extent required by the Election Form) surrender by such holder accompanied by such holder's Certificates, or by an appropriate guarantee of delivery of such Certificates from a member of any registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States as set forth in such Election Form. Any holder of Agribrands Common Stock or Ralcorp Common Stock who has made an election by submitting an Election Form to the Exchange Agent shall be deemed to have irrevocably made such election. Any holder of a Certificate, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Agribrands Common Stock constituting or Ralcorp Common Stock who fails to properly make the Merger Consideration will required election shall be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease deemed to have any rights made a Stock Election with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stock.
shares (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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(iDissenting Shares) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form owned by such holder for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax which no such election has been paid or is not payablemade.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ralcorp Holdings Inc /Mo)
Surrender and Payment. (a) Clearwire has appointed As promptly as practicable after the date of this Agreement, Parent and the Equityholders’ Representative shall appoint and retain the Exchange Agent Agent, for the purpose of exchanging the Merger Consideration for:
(i) certificates representing for shares of Clearwire Capital Company Common Stock (and the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing Date, NewCo will send, or will Warrant and Parent shall cause the Exchange Agent to send, mail to each holder of record of shares of Clearwire Capital Company Common Stock at and the Effective Time Warrantholder a letter of transmittal in substantially the form attached hereto as Exhibit C (the “Letter of Transmittal”), to be completed and instructions that will specify that delivered by each such Equityholder and the delivery will be effected, and risk Warrantholder to effect the exchange of loss and title will pass, only on proper delivery such Equityholder’s shares of Company Common Stock or the Warrantholder of the Certificates or transfer Warrant, as applicable, for the payment of a portion of the Uncertificated Shares Merger Consideration and other amounts referred to in Section 2.04 in respect of such shares of Company Common Stock or the Exchange AgentWarrant, as applicable.
(b) Each holder of shares of Clearwire Capital Stock will At the Closing, Parent shall deliver or cause to be entitled to receive, on
delivered (i) surrender to each Equityholder such Equityholders’ portion of the Merger Shares as is set forth on the Allocation Schedule and (ii) by wire transfer of immediately available funds to (A) the Exchange Agent, in trust for the benefit of the Equityholders entitled thereto, the Estimated Merger Consideration (excluding the Merger Shares and the Estimated Option Consideration) and (B) to the Company, in trust for the benefit of the Optionholders entitled thereto, the Estimated Option Consideration.
(c) Upon delivery to the Exchange Agent of a Certificate, properly completed and duly executed Letter of Transmittal (together with a properly completed letter of transmittaland duly executed Tax forms), or
(ii) stock certificates representing the Equityholder’s Company Common Stock or Warrant and receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of such evidence of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The an Equityholder whose shares of Class A Company Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except been converted into the right to receive the applicable portion of the Merger Consideration shall be entitled (i) to promptly receive from the Exchange Agent the portion of the Estimated Merger Consideration to which such Equityholder is entitled pursuant to Section 2.04 and Section 2.10, and (ii) to receive from the Exchange Agent the portion of the remainder (if any) of the Merger Consideration payable or deliverable for each such Equityholder’s shares of Company Common Stock in respect the manner and at (or promptly following) the times paid or delivered to the Exchange Agent, in trust for the benefit of the Clearwire Capital StockEquityholders entitled thereto, as set forth in this Agreement. Until transferred, each share of capital stock (other than Dissenting Shares) and the Warrant shall represent after the Effective Time for all purposes only the right to receive a portion of the Merger Consideration and other amounts referred to in Section 2.04, each in accordance with, and subject to the terms of, this Agreement, and such share shall be canceled and cease to exist.
(cd) In the event an Equityholder’s stock certificate has been lost, stolen or destroyed, the payment of any portion of the Merger Consideration shall be conditioned upon the delivery by the Equityholder of an affidavit of loss in a form acceptable to Parent and the Exchange Agent in their sole discretion, together with a bond or other surety sufficient, in the sole discretion of the Exchange Agent, to insure against the risk of loss to the Company, the Exchange Agent and the Parent as a result of such loss, theft or destruction.
(e) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share related share of Company Common Stock is registered, it will shall be a condition to the such payment that
(i) either the surrendered Certificate will that any uncertificated shares shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) transferred and the Person requesting the such payment will shall pay to the Exchange Agent Parent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the Certificate or Uncertificated Share such share or establish to the satisfaction of the Exchange Agent Parent that the such Tax has been paid or is not payable.
(df) After the Effective Time, the transfer books of the Company shall be closed and there will shall be no further registration of transfers of shares of Clearwire Capital Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares shares are presented to NewCoParent, the Surviving Company or the Exchange Agent, they will shall be canceled and exchanged for a portion of the Merger Consideration payable and other amounts referred to in respect of the Clearwire Capital Stock provided forSection 2.04, each in accordance with, and in accordance with subject to the terms of, this Agreement, including the procedures set forth, forth in this Article 2.
(eg) After the Effective Time, each Equityholder shall look only to the Exchange Agent for payment or delivery of the portion of the Merger Consideration and other payments payable pursuant to Section 2.04, Section 2.10, Section 2.13 and Section 9.08 and the other amounts payable pursuant to this Agreement, in each case, in respect of shares of Company Common Stock or the Warrant. Notwithstanding anything to the contrary contained herein, payment by or on behalf of Parent to the Exchange Agent in accordance with this Agreement shall be in full satisfaction of the obligations of Parent and its Affiliates with respect to such payment.
(h) Any portion of the Merger Consideration made available and other amounts referred to the Exchange Agent under in Section 2.6(a2.04 (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve Equityholders 18 months after the Closing Date will Effective Time shall be returned to NewCoParent (or, on at Parent’s written direction, one of its Affiliates), upon demand. Any holder , and any such Equityholder who has not exchanged shares of Clearwire Capital Company Common Stock or Warrant for a portion of the Merger Consideration in accordance with this Section 2.6 before 2.06 prior to that date will time shall thereafter look only to NewCo Parent and the Surviving Company for payment of a portion of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such shares of Company Common Stock or Warrant, without any interest thereon. Regardless Prior to the due transfer of any applicable share by an Equityholder, no portion of the preceding sentenceMerger Consideration shall be paid to such Equityholder in respect of such share or warrant. Notwithstanding the foregoing, NewCo will not none of Parent, Merger Sub, the Company, the Surviving Company, the Equityholders’ Representative, the Exchange Agent or any other Person shall be liable to any holder of shares of Clearwire Capital Stock Equityholder for any amounts amount properly paid delivered to a public official under pursuant to applicable abandoned property, escheat or similar Applicable Laws. Any amounts portion of the Merger Consideration remaining unclaimed by holders of shares of Clearwire Capital Stock six Equityholders two years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(i) No dividends or other distributions with respect to shares of capital stock of the Surviving Company with a record date after the Effective Time shall be paid to any Equityholder.
(j) All consideration paid in respect of the surrender or exchange of shares of Company Common Stock or Warrant in accordance with the terms hereof shall be deemed to be in full satisfaction of all rights pertaining to such shares or warrant.
(k) For the avoidance of doubt, no interest will be paid or accrued on the Merger Consideration or any payments thereof to the Equityholders.
(l) At the Closing, Parent will deliver to the Escrow Agent, by wire transfer of immediately available funds to an account designated in writing by the Escrow Agent, cash in an amount equal to the Adjustment Escrow Deposit Amount, for deposit into an escrow account (the “Adjustment Escrow Account”) established pursuant to the terms of the Escrow Agreement. The Company shall be responsible for and pay all of the fees and expenses payable to the Escrow Agent pursuant to the Escrow Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Signify Health, Inc.)
Surrender and Payment. (a) Clearwire has appointed the Exchange Agent for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly As promptly as reasonably practicable after the Closing DateEffective Time, NewCo but in no event more than five Business Days following the Effective Time, BGCP will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital New JPI Common Stock at as of the Effective Time Time, whose shares of New JPI Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 1.7, a letter of transmittal and instructions that will transmittal, substantially in the form attached as Exhibit C hereto (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of loss in lieu thereof) to BGCP), including instructions for use in effecting the Uncertificated Shares surrender of Certificates (or effective affidavits of loss in lieu thereof) to BGCP in exchange for the Exchange AgentMerger Consideration.
(b) Each holder of shares of Clearwire Capital New JPI Common Stock will be entitled that have been converted into the right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent BGCP of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or
duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by BGCP, will be entitled to receive in exchange therefor, as set forth in Section 1.7, (iii) receipt the number of an “agent’s message” by shares of BGCP Common Stock (which shall be in non-certificated book-entry form) representing, in the Exchange Agent (or other evidenceaggregate, the whole number of shares of BGCP Common Stock, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the such holder has a the right to receive under and/or (ii) a check for the amount of cash that such holder has the right to receive, including cash payable in lieu of fractional shares pursuant to Section 2.52.5 and dividends and other distributions payable pursuant to Section 2.1(f) (less any required Tax withholding), in each case pursuant to Section 1.7 and this Article II. The shares of Class A Common Stock constituting the Merger Consideration will shall be in uncertificated book-entry form, unless a physical certificate is requested paid as promptly as practicable after receipt by the holder or is otherwise required under applicable Law. As a result BGCP of the MergerCertificate and letter of transmittal in accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration, at cash in lieu of fractional shares or unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable Consideration, cash in respect lieu of the Clearwire Capital Stockany fractional shares and any unpaid dividends and distributions.
(c) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the of such payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or Uncertificated Share shall establish to the satisfaction of BGCP that such Tax has been paid or is not payable. 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 to BGCP 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 Certificate or establish to the satisfaction of the Exchange Agent BGCP that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital New JPI Common Stock. From and after the Effective Time, the holders of Certificates representing shares of New JPI Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of New JPI Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCoBGCP, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in Article I and this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCoNeither BGCP, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger ConsiderationXxxxxx Xxx 0, and any dividends and distributions with respect to the Merger ConsiderationXxxxxx Xxx 0, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not XXX nor New JPI shall be liable to any holder of shares of Clearwire Capital New JPI Common Stock for any amounts properly paid Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions delivered to a public official under any Governmental Entity pursuant to applicable abandoned property, escheat or similar property Laws. Any amounts Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions remaining unclaimed by holders of shares of Clearwire Capital New JPI Common Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the as such amounts would otherwise escheat to or become the property of any Governmental Authority) will becomeEntity shall, to the extent permitted by applicable Law, become the property of NewCo, BGCP 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 BGCP 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 2.1. Following such surrender, subject to the effect of escheat (in accordance with Section 2.1(e)), Tax or other applicable Law, there shall be paid, without interest, to the record holder of the shares of BGCP Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such shares of BGCP 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 BGCP 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 BGCP Common Stock, all shares of BGCP 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.
Appears in 1 contract
Surrender and Payment. a. Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to Xxxxx and Reading (athe "Exchange Agent") Clearwire has appointed for the purpose of exchanging Xxxxx and Reading Stock Certificates formerly representing Xxxxx and Reading Stock, as applicable. At or prior to the Effective Time, Parent shall deposit with the Exchange Agent for the purpose benefit of exchanging the Merger Consideration for:
holders of Xxxxx and Reading Stock, for exchange in accordance with this Section 3.2 through the Exchange Agent, (i) as of the Effective Time, certificates representing shares of Clearwire Capital the Xxxxx and Reading Stock (the “Certificates”Merger Consideration to be issued pursuant to Section 3.1(a) or
and Section 3.1(b), as applicable, and (ii) uncertificated from time to time as necessary, cash to be paid in lieu of fractional shares of Clearwire Capital pursuant to Section 3.4 (such certificates for the Xxxxx and Reading Stock (Merger Consideration and such cash being hereinafter referred to as the “Uncertificated Shares”"Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Xxxxx and Reading Stock Merger Consideration, as applicable, in exchange for surrendered Xxxxx and Reading Stock Certificates formerly representing Xxxxx and Reading Stock pursuant to Section 3.1 out of the Exchange Fund. Except as contemplated by Section 3.2(e), the Exchange Fund shall not be used for any other purpose.
b. Promptly after the Closing DateEffective Time, NewCo Parent will send, or will cause the Exchange Agent to send, to each holder of shares a Xxxxx and Reading Stock Certificate or Certificates, as applicable, that immediately prior to the Effective Time represented outstanding Xxxxx and Reading Stock a letter of Clearwire Capital transmittal and instructions for use in effecting the exchange of such Xxxxx and Reading Stock at Certificate or Certificates, as applicable, for certificates representing the Xxxxx and Reading Stock Merger Consideration and, if applicable, cash in lieu of fractional shares. Provision also shall be made for holders of Xxxxx and Reading Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions that will specify that and to deliver in person immediately after the delivery will be effectedEffective Time such letter of transmittal and Xxxxx and Reading Stock Certificates in exchange for the Xxxxx and Reading Stock Merger Consideration and, if applicable, cash, in lieu of fractional shares.
c. After the Effective Time, Xxxxx Common Stock Certificates, Xxxxx Common Preference Stock Certificates and risk of loss and title will passReading Common Stock Certificates shall represent the right, only on proper delivery of the Certificates or transfer of the Uncertificated Shares upon surrender thereof to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) surrender to the Exchange Agent of a Certificate, together with a duly executed and properly completed letter of transmittaltransmittal relating thereto, or
(ii) receipt to receive in exchange therefor that number of an “agent’s message” by the Exchange Agent (or other evidencewhole shares of Parent Class A Stock, and, if anyapplicable, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration cash that the such holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive pursuant to Sections 3.1 and 3.4 after giving effect to any required tax withholding, and the Merger Consideration Xxxxx Common Stock Certificates, Xxxxx Common Preference Stock Certificates and Reading Common Stock Certificates so surrendered shall be canceled. No interest will be paid or will accrue on any cash amount payable in respect upon the surrender of the Clearwire Capital Stockany such Xxxxx Common Stock Certificates, Xxxxx Common Preference Stock Certificates and Reading Common Stock Certificates.
(c) d. If any portion shares of the Merger Consideration is Parent Class A Stock are to be issued and/or cash to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate Xxxxx Common Stock Certificates, Xxxxx Preference Stock Certificates or Uncertificated Share Reading Common Stock Certificates surrendered in exchange therefor, it shall be a condition to such issuance that the Xxxxx Common Stock Certificates, Xxxxx Preference Stock Certificates or Reading Common Stock Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such issuance shall pay to the Exchange Agent any transfer or other taxes required as a result of such issuance to a Person other than the registered holder or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payableapplicable. 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 or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire Acquiror has appointed entered into the Exchange Agent for Agreement with CompuShare (the purpose “Exchange Agent”) to act as the exchange agent in the Merger. The Exchange Agent has established an electronic portal to facilitate the electronic submission of exchanging documents by Company Preferred Stockholders. The Exchange Agent shall send to each holder of record of Company Stock entitled to receive a portion of the Closing Merger Consideration for:
pursuant to Section 3.01 a letter of transmittal in the form attached hereto as Exhibit D (ia “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates representing shares of Clearwire Capital Stock evidencing such Company Stock, in physical or electronic form, as the case may be (the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Closing Merger Consideration payable to such holder. The Exchange Agent shall (A) or
at or promptly following the Effective Time, issue to each holder of record of Company Preferred Stock entitled to receive a portion of the Closing Merger Consideration pursuant to Section 3.01 that has delivered a Certificate (iionly to the extent such Company Preferred Stock is represented by a Certificate) uncertificated shares (together with a Letter of Clearwire Capital Stock Transmittal duly completed and validly executed in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (the “Uncertificated Shares”). Promptly after 3) Business Days prior to the Closing Date, NewCo will sendthe portion of the Closing Merger Consideration with respect to such Certificate (or any Company Preferred Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, or will cause with respect to any holder of record of Company Proffered Stock entitled to receive a portion of the Closing Merger Consideration pursuant to Section 3.01 that did not receive such portion of the Closing Merger Consideration pursuant to the preceding clause (A), no later than three (3) Business Days after receipt of a Certificate (only to the extent such Company Preferred Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require in connection therewith), issue to send, to each the holder of shares such Certificate (or any Company Stock not represented by a Certificate) the portion of Clearwire Capital the Transaction Consideration with respect to such Certificate (or any Company Stock at not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Closing Merger Consideration into which such Company Preferred Shares have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(c)) and Section 3.01(a), respectively, in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery or, upon the written request of any Company Preferred Stockholder, in the form of an original stock certificate to the address set forth in such Company Preferred Stockholder’s Letter of Transmittal. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Closing Merger Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time a letter represented shares of transmittal Company Stock (other than for the shares to be canceled pursuant to Section 3.01(c) and instructions that will specify that Dissenting Shares) shall be deemed from and after the delivery will be effectedEffective Time, and risk of loss and title will passfor all purposes, to evidence only on proper delivery the right to receive the portion of the Certificates Closing Merger Consideration. If after the Effective Time, any Certificate (or transfer of the Uncertificated Shares any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled and exchanged as provided in this Section 3.04(a).
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(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 Exchange Agent (No dividends or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder distributions declared or is otherwise required under applicable Law. As a result of the Merger, at made after the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights Time with respect to the Clearwire Capital Acquiror Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate (or Company Stock not represented by a Certificate) with respect to the Acquiror Common Stock issuable to such holder hereunder in consideration for the surrender of such Certificate (or Company Stock not represented by a Certificate) until the holder of such Certificate (or Company Stock not represented by a Certificate) shall surrender such Certificate (or Company Stock not represented by a Certificate). Subject to the effect of escheat, tax or other applicable Laws, following surrender of any such Certificate (or Company Stock not represented by a Certificate), there shall be paid to the holder of the certificates representing shares of Acquiror Common Stock issued in exchange therefor, without interest, (i) the amount of dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Acquiror Common Stock, except and (ii) at the right appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to receive the Merger Consideration surrender and a payment date occurring after surrender, payable in with respect to such whole shares of the Clearwire Capital Acquiror Common Stock.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Final Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains remaining unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six Company Preferred Stockholders three (3) years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Law, the property of NewCo, Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(d) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity, in form and substance approved by the Company and the Exchange Agent, by the Person claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the portion of the Closing Merger Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) Notwithstanding anything else in this Agreement, no certificates or scrip representing a fractional share of Acquiror Common Stock will be issued to any of the Company Preferred Stockholders in connection with payment of the Final Merger Consideration, and to the extent a fractional share of Acquiror Common Stock would have been issuable to a Company Preferred Stockholder as part of the Final Merger Consideration, Acquiror shall issue a number of shares of Acquiror Common Stock rounded to the nearest whole number of shares of Acquiror Common Stock to such Company Preferred Stockholder with respect to each such payment.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Buyer shall appoint an exchange agent (the "Exchange Agent Agent") for the purpose of exchanging Certificates for the Merger Consideration for:
Consideration. At or promptly following the Effective Time, Buyer shall deposit, or cause to be deposited, with the Exchange Agent (i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
Parent Class A Common Shares issuable pursuant to Section 2.2(a)(iv), (ii) uncertificated cash sufficient to make the cash payments payable pursuant to Section 2.2(a)(iv), and (iii) from time to time as needed, cash sufficient to pay cash in lieu of fractional shares of Clearwire Capital Stock (to the “Uncertificated Shares”)extent required by Section 2.6. Promptly after the Closing DateEffective Time, NewCo Buyer will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital Company Common Stock at as of the Effective Time Time, a letter of transmittal and instructions that will for use in such exchange (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer to the Exchange Agent), which letter shall be in such form as the Company and Buyer may reasonably agree to use in effecting delivery of the Uncertificated Shares shares of Company Common Stock to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Company Common Stock that have been converted into the right to receive the Merger Consideration as provided herein will be entitled to receive, on
(i) receive the Merger Consideration in respect of the shares of Company Common Stock represented by such Certificate only upon surrender to the Exchange Agent of a such Certificate, together with a properly completed letter of transmittal. Until so surrendered, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidenceeach such Certificate so converted shall, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive such Merger Consideration. No interest will be paid or accrued on any cash payable as part of the Merger Consideration payable or in respect lieu of the Clearwire Capital Stockfractional shares pursuant to Section 2.6.
(c) If any portion of the Merger Consideration is to be registered in or paid to the name of a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the registration or payment that
of such Merger Consideration that (i) either the surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferredtransfer, and
and (ii) the Person requesting such registration or payment of the payment will Merger Consideration shall (A) pay to the Exchange Agent any transfer or other Taxes required as a result of such registration or payment in the payment to name of a Person other than the registered holder of the Certificate such Certificate, or Uncertificated Share or (B) establish to the satisfaction of the Exchange Agent Parent that the such Tax either has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Stockcapital stock of the Company on the stock records of, or relating to, the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent, the Surviving Corporation or Buyer, they will shall be canceled and and, if applicable, exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures and limitations set forth, in this Article 2II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.3(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve (12) months after the Closing Date will Effective Time shall be returned to NewCo, on demand. Any Buyer and any such holder who has not exchanged such holder's shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before 2.3 prior to that date will time shall thereafter look only to NewCo Buyer for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such holder's shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Buyer shall not be liable to any holder of shares of Clearwire Capital Stock Person for any amounts properly paid Merger Consideration delivered to a public official under pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders If any Certificate shall not have been surrendered immediately prior to such date on which any Merger Consideration, any dividends or distributions payable to the holder of shares such Certificate or any cash payable to the holder of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts such Certificate pursuant to this Section 2.3 would otherwise escheat to or become the property of any Governmental Authority) will become, any such Merger Consideration, dividends or distributions in respect of such Certificate or such cash shall, to the extent permitted by applicable Law, become the property of NewCothe Surviving Corporation, free and clear of any all claims or interest interests of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Class A Common Shares shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 2.3. Subject to the effect of applicable Laws, following such surrender, there shall be paid, without interest, to the record holder of the Parent Class A Common Shares issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such Parent Class A Common Shares 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 Parent Class A Common Shares 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 Parent Class A Common Shares, all Parent Class A Common Shares 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) The Exchange Agent shall invest any cash made available to the Exchange Agent pursuant to Section 2.3(a) as directed by Buyer on a daily basis. Any interest and other income resulting from such investments shall promptly be paid to Buyer.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Comcast shall appoint an agent (the "Exchange Agent Agent") for the purpose of exchanging the Merger Consideration for:
(i) exchanging certificates representing shares of Clearwire Capital MediaOne Common Stock (the “"Common Certificates”") or
for the Common Stock Consideration, (ii) uncertificated exchanging certificates representing shares of Clearwire Capital MediaOne Series C Preferred Stock (the “Uncertificated Shares”"Series C Certificates") for the Series C Consideration, (iii) exchanging certificates representing shares of MediaOne Series D Preferred Stock (the "Series D Certificates") for the Series D Consideration and (iv) exchanging certificates representing shares of MediaOne Series E Preferred Stock (the "Series E Certificates", and together with the Common Certificates, the Series C Certificates and the Series D Certificates, the "Certificates") for the Series E Consideration. At the Effective Time, Comcast will make available to the Exchange Agent, as needed, (i) the Common Stock Consideration to be paid in respect of shares of MediaOne Common Stock, (ii) the Series C Consideration to be paid in respect of shares of MediaOne Series C Preferred Stock, (iii) the Series D Consideration to be paid in respect of shares of MediaOne Series D Preferred Stock, (iv) the Series E Consideration to be paid in respect of shares of MediaOne Series E Preferred Stock and (v) cash in an amount required to be paid pursuant to Section 3.2(f). The Common Stock Consideration, Series C Consideration, Series D Consideration, Series E Consideration and cash referred to in items (i) through (v) are referred to herein as the "Exchange Fund". Promptly after the Closing DateEffective Time, NewCo Comcast will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital MediaOne Common Stock, MediaOne Series C Preferred Stock, MediaOne Series D Preferred Stock or MediaOne Series E Preferred Stock at the Effective Time Time, a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) Upon surrender to the Exchange Agent of a its Certificate, together with a properly completed letter of transmittal, or
(i) each holder of shares of MediaOne Common Stock (the "MediaOne Common Holders") will be entitled to receive the Common Stock Consideration in respect of the shares of MediaOne Common Stock represented by its Certificate; (ii) receipt each holder of an “agent’s message” by shares of MediaOne Series C Preferred Stock (the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request"MediaOne Series C Holders") in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right will be entitled to receive under Section 2.5. The the Series C Consideration in respect of the shares of Class A Common MediaOne Series C Preferred Stock constituting represented by its Certificate; (iii) each holder of shares of MediaOne Series D Preferred Stock (the Merger Consideration "MediaOne Series D Holders") will be entitled to receive the Series D Consideration in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result respect of the Mergershares of MediaOne Series D Preferred Stock represented by its Certificate and (iv) each holder of shares of MediaOne Series E Preferred Stock (the "MediaOne Series E Holders") will be entitled to receive the Series E Consideration in respect of the shares represented by its Certificate. In addition, at each such MediaOne Common Holder, MediaOne Series C Holder, MediaOne Series D Holder and MediaOne Series E Holder will be entitled to receive any dividends and distributions payable pursuant to Section 3.2(f). Until so surrendered, each such Certificate shall represent after the Effective Time, for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stockpurposes, except only the right to receive the Merger Common Stock Consideration, the Series C Consideration, the Series D Consideration payable in respect of or the Clearwire Capital StockSeries E Consideration, as the case may be.
(c) If any portion of the Merger Common Stock Consideration, the Series C Consideration, the Series D Consideration or the Series E Consideration is to be paid to a Person other than the Person in whose name the Certificate so surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
(i) either the surrendered that such Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the Certificate or Uncertificated Share such Certificate, or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital MediaOne Common Stock, MediaOne Series C Preferred Stock, MediaOne Series D Preferred Stock or MediaOne Series E Preferred Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Common Stock Consideration, the Series C Consideration, the Series D Consideration payable in respect of or the Clearwire Capital Stock Series E Consideration provided for, and in accordance with the procedures set forth, in this Article 23.
(e) Any portion of the Merger Consideration Exchange Fund made available to the Exchange Agent under pursuant to Section 2.6(a3.2(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months MediaOne Common Holders, MediaOne Series C Holders, MediaOne Series D Holders and MediaOne Series E Holders one year after the Closing Date will Effective Time shall be returned to NewCoComcast, on upon demand. Any , and any such holder who has not exchanged its shares of Clearwire Capital Stock for the Merger Common Stock Consideration, the Series C Consideration, the Series D Consideration or the Series E Consideration in accordance with this Section 2.6 before 3.2 prior to that date will time shall thereafter look only to NewCo Comcast for payment of the Merger Considerationsuch consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Comcast shall not be liable to any holder of shares of Clearwire Capital Stock MediaOne Common Holder, MediaOne Series C Holder, MediaOne Series D Holder or MediaOne Series E Holder for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six the MediaOne Common Holders, MediaOne Series C Holders, MediaOne Series D Holders and MediaOne Series E Holders five years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Lawlaw, the property of NewCo, Comcast free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to any Comcast Securities constituting part of the Common Stock Consideration, the Series C Consideration, the Series D Consideration or the Series E Consideration and, in the case of the Common Certificates and Series D Certificates, no cash payment in lieu of fractional shares as provided in Section 3.6, shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in Section 3.2(b). Following such surrender, there shall be paid, without interest, to the Person in whose name such Comcast Securities have been registered, (i) at the time of such surrender, (A) in the case of Common Certificates and Series D Certificates, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.6, and (B) 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, with respect to such Comcast Securities, 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 surrender, and with a payment date subsequent to surrender, payable with respect to such Comcast Securities.
(g) Any portion of the Series C Consideration or the Series E Consideration made available to the Exchange Agent pursuant to Section 3.2(a) to pay for shares of MediaOne Series C Preferred Stock or MediaOne Series E Preferred Stock for which appraisal rights have been perfected shall be returned to Comcast upon demand.
Appears in 1 contract
Samples: Merger Agreement (Comcast Corp)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, ServiceMaster shall appoint an agent reasonably acceptable to LandCare (the "Exchange Agent Agent") for the -------------- purpose of exchanging certificates representing Shares for the Merger Consideration. Immediately following the Effective Time, ServiceMaster shall deposit with the Exchange Agent, for the benefit of the holders of certificates formerly representing Shares, the Merger Consideration for:
(iissuable pursuant to Section 1.2(a)(iii) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated in exchange for outstanding Shares”). Promptly after the Closing DateEffective Time, NewCo ServiceMaster will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Shares at the Effective Time (i) a letter of transmittal and instructions that will for use in such exchange (which shall specify that delivery of the delivery will Merger Consideration shall be effected, and risk of loss and title will to the certificates representing ServiceMaster Common Stock and LandCare Common Stock shall pass, only on upon proper delivery deliver of the Certificates or transfer of the Uncertificated certificates formerly representing Shares to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the certificates formerly representing Shares in exchange for the Merger Consideration.
(b) Each holder of shares of Clearwire Capital Stock will be entitled Shares that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates formerly representing such Shares, together with a properly completed and duly executed letter of transmittal, or
(ii) receipt of an “agent’s message” transmittal covering such Shares and such other documents as may reasonably be required by the Exchange Agent (or other evidenceAgent, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right entitled to receive the Merger Consideration payable in respect of such Shares and any dividends payable pursuant to Section 1.3(f). Until so surrendered, each such certificate shall, after the Clearwire Capital StockEffective Time, represent for all purposes only the right to receive the Merger Consideration and any dividends payable pursuant to Section 1.3(f), without interest.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the Person registered holder of the Shares formerly represented by the certificate or certificates surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share is registeredexchange therefor, it will shall be a condition to such payment that the payment that
(i) either the certificate or certificates so surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of such Shares represented by the Certificate certificate or Uncertificated Share certificates so surrendered or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payableapplicable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockShares. If, after the Effective Time, Certificates or Uncertificated certificates formerly representing Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 21.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a1.3(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months Shares one year after the Closing Date will Effective Time shall be returned to NewCoServiceMaster, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock his Shares for the Merger Consideration in accordance with this Section 2.6 before 1.3 prior to that date will time shall thereafter look only to NewCo ServiceMaster for payment of the Merger Consideration, Consideration and any dividends and distributions with respect payable pursuant to the Merger Consideration, Section 1.3(f) in respect of those shares without any interest thereonhis Shares. Regardless of Neither ServiceMaster, LandCare nor the preceding sentence, NewCo will not Exchange Agent shall be liable to any holder person in respect of any shares of Clearwire Capital Stock for ServiceMaster Common Stock, any amounts properly paid dividends or distributions with respect thereto or any cash in lieu of fractional shares of ServiceMaster Common Stock, in each case, delivered to a public official under pursuant to any applicable abandoned property, escheat or similar Lawslaw. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six If any certificate representing Shares shall not have been surrendered prior to two years after the Closing Date Effective Time (or that immediately prior to such earlier datedate on which any Merger Consideration, immediately before any dividends or distributions payable to the time when holder of such certificate or any cash payable to the amounts holder of such certificate formerly representing LandCare Common Stock pursuant to this Article 1, would otherwise escheat to or become the property of any Governmental Authority) will becomeEntity (as hereinafter defined)), any such Merger Consideration, dividends or distributions in respect of such certificate or such cash shall, to the extent permitted by applicable Lawlaw, become the property of NewCothe Surviving Corporation, free and clear of any all claims or interest of any Person person previously entitled thereto.
(f) No dividends or other distributions with respect to ServiceMaster Common Stock issued in connection with the Merger shall be paid to the holder of any unsurrendered certificates formerly representing Shares until such certificates are surrendered as provided in this Section 1.3. Subject to the effect of applicable laws, following the surrender of such certificates, there shall be paid, without interest, to the record holder of ServiceMaster Common Stock issued in exchange therefor at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time payable prior to or on the date of such surrender with respect to such whole shares of ServiceMaster Common Stock and not previously paid, less the amount of any withholding taxes which may be required thereon.
(g) The Exchange Agent shall invest any cash deposited with the Exchange Agent, as directed by ServiceMaster, on a daily basis. Any interest and other income resulting from such investments shall be paid to ServiceMaster.
(h) If any certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the 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 certificate, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed certificate the Merger Consideration and, if applicable, any unpaid dividends and distributions on shares of ServiceMaster Common Stock deliverable in respect thereof and any cash in lieu of fractional shares, in each case, due to such person pursuant to this Agreement.
Appears in 1 contract
Samples: Plan of Reorganization and Agreement and Plan of Merger (Servicemaster Co)
Surrender and Payment. (a) Clearwire has appointed the Exchange Agent for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing DateEffective Time, NewCo will DT shall cause the Surviving Corporation to send, or will cause the Exchange Escrow Agent to send, to each holder of shares record as of Clearwire Capital Stock at the Effective Time of Powertel Stock (other than holders of Excluded Powertel Shares) a letter of transmittal and instructions that will which shall specify that the delivery will of Certificates shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares a Certificate to the Exchange Escrow Agent, and instructions for use in effecting the surrender to the Escrow Agent of Certificates in exchange for the Merger Consideration (the "LETTER OF TRANSMITTAL"). The Letter of Transmittal shall contain such other terms and conditions as DT and Powertel may reasonably specify.
(b) Each record holder of shares of Clearwire Capital any Powertel Stock will be entitled to receive(other than Excluded Powertel Shares) shall, on
(i) upon surrender to the Exchange Escrow Agent of a CertificateCertificate or Certificates representing such shares of Powertel Stock, together with a properly completed letter Letter of transmittalTransmittal covering the Powertel Stock represented by such Certificate or Certificates, or
without further action, be entitled to receive, and the Escrow Agent shall deliver (and DT shall cause the Escrow Agent to deliver) to each such holder, subject to Section 1.06(e) below, (i) the number of whole DT Depositary Shares or DT Ordinary Shares included in the Merger Consideration in respect of such Powertel Stock, subject to the provisions of Section 1.05, and (ii) receipt a check in the amount (after giving effect to any required tax withholdings) of an “agent’s message” by the Exchange Agent (A) any cash in lieu of Fractional Interests (as defined below) to be paid pursuant to Section 1.09, plus (B) any cash dividends or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration distributions that the such holder has a the right to receive under pursuant to Section 2.51.06(f). The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry formUntil so surrendered, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergereach such Certificate shall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration payable number of whole DT Depositary Shares or DT Ordinary Shares, as applicable, to which it is entitled pursuant to Section 1.05 and the applicable amounts of cash provided in respect the foregoing clause (ii) of the Clearwire Capital Stockpreceding sentence.
(c) If any portion of the Merger Consideration is DT Depositary Shares or DT Ordinary Shares are to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment delivered to a Person other than the registered holder of the Powertel Stock represented by a Certificate or Uncertificated Share Certificates surrendered with respect thereto, it shall be a condition to such issuance 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 delivery shall pay to the Escrow Agent any transfer or other taxes required as a result of such delivery to a Person other than the registered holder of such Powertel Stock or establish to the satisfaction of the Exchange Escrow Agent that the Tax such tax has been paid or is not payable.
(d) After The stock transfer books of Powertel shall be closed after the close of trading on the National Market System (the "NASDAQ") on the trading day immediately prior to the Effective Time, and thereafter there will shall be no further registration of transfers of shares of Clearwire Capital Stock. If, after Powertel Common Stock that were outstanding prior to the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for . After the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.Effective Time,
Appears in 1 contract
Samples: Merger Agreement (Powertel Inc /De/)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Dai-ichi will appoint a U.S. bank or trust company reasonably acceptable to Protective (the "Exchange Agent Agent") for the purpose of exchanging the Certificates for Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly As soon as reasonably practicable after the Closing DateEffective Time, NewCo but in no event more than two Business Days following the Effective Time, Dai-ichi will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital Common Stock at as of the Effective Time Time, whose shares of Common Stock were converted into the right to receive the Merger Consideration, a letter of transmittal and instructions that (which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) to the Exchange Agent) in such form as Protective and Dai-ichi may reasonably agree, 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.
(b) At or prior to the Effective Time, Dai-ichi will cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of shares of Common Stock, an amount of cash in United States dollars sufficient to make the payments contemplated by Section 2.06, payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article III. All cash deposited with the Exchange Agent is referred to in this Agreement as the "Exchange Fund." The Exchange Agent will, pursuant to irrevocable instructions, deliver the appropriate Merger Consideration 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 Dai-ichi; provided that no such investment or losses thereon will affect the Merger Consideration payable to holders of shares of Common Stock entitled to receive such consideration and Dai-ichi will promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of shares of Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments will be the property of, and paid to, Dai-ichi.
(c) Each holder of shares of Clearwire Capital Common Stock will be entitled that have been converted into the right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor a check in the amount, if any, that such holder has the right to receive in cash pursuant to Section 2.06 and this Article III. The Merger Consideration will be paid as promptly as practicable (by mail or
(ii, to the extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of a Certificate) after receipt of an “agent’s message” by the Exchange Agent (of the Certificate and letter of transmittal in accordance with the foregoing. No interest will be paid or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate accrued on any Merger Consideration that the holder has a right or on any unpaid dividends and distributions payable to receive under Section 2.5. The shares holders of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital StockCertificates.
(cd) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the of such payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) that the Person requesting the such payment will pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or Uncertificated Share will establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. 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 will be a condition to the registration thereof that the surrendered Certificate will be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the 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 Certificate or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(de) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital StockCommon Stock outstanding prior to the Effective Time other than as provided for in Section 2.06(d). From and after the Effective Time, the holders of Certificates representing shares of Common Stock outstanding immediately prior to the Effective Time will cease to have any rights with respect to such shares of Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent or Dai-ichi, they will be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, forth in Article II and this Article III. Notwithstanding anything to the contrary contained in this Article 2Agreement, the 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 Protective with respect to shares of Common Stock in accordance with the terms of this Agreement prior to the Effective Time which remain unpaid at the Effective Time.
(ef) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital Common Stock twelve months one year after the Closing Date Effective Time will be returned to NewCoDai-ichi, on upon demand. Any , and any such holder who has not exchanged his or her shares of Clearwire Capital Common Stock for the Merger Consideration in accordance with this Section 2.6 before Article III prior to that date time will thereafter look only to NewCo Dai-ichi for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such holder's shares without any interest thereon. Regardless of Common Stock.
(g) Neither Dai-ichi, the preceding sentence, NewCo Surviving Corporation nor the Exchange Agent will not be liable to any former holder of shares of Clearwire Capital Common Stock for any amounts properly paid portion of the Merger Consideration delivered to a public official under any Government Authority pursuant to any applicable abandoned property, escheat or similar LawsLaw. Any amounts remaining unclaimed by holders In the event any Certificate has not been surrendered prior to the date as of shares of Clearwire Capital Stock six years after which such Certificate or the Closing Date (or that earlier date, immediately before Merger Consideration payable upon the time when the amounts would otherwise escheat surrender thereof escheats to or become otherwise becomes the property of any Governmental Authority) , Dai-ichi, the Surviving Corporation and the Exchange Agent will become, be permitted to comply with such Laws and the Merger Consideration otherwise payable upon the surrender of such Certificate 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 Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretosuch Certificate.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, New Sailfish shall appoint the Exchange Agent for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Sailfish Common Stock (the “Certificates”) ); or
(ii) uncertificated shares of Clearwire Capital Sailfish Common Stock (the “Uncertificated Shares”). Prior to the Effective Time, New Sailfish shall provide or shall cause to be provided to the Exchange Agent shares of New Sailfish Common Stock sufficient in order for the Exchange Agent to distribute the aggregate Merger Consideration. Promptly after the Closing Date, NewCo New Sailfish will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Sailfish Common Stock at the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Sailfish Common Stock will be entitled to receive, on
(i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittaltransmittal (or other evidence, if any, of transfer as the Exchange Agent may reasonably request), or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.52.03. The shares of Class A New Sailfish Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Sailfish Common Stock will cease to be outstanding and each holder of Clearwire Capital Sailfish Common Stock will cease to have any rights with respect to the Clearwire Capital Sailfish Common Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital StockSailfish Common Stock under Section 2.03.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.:
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Exchange Agent Effective Time, Parent shall appoint a bank, trust company or nationally recognized stockholder services provider reasonably acceptable to the Company to act as the paying agent for the holders of Company Common Stock in connection with the Merger (the “Paying Agent”). At or substantially concurrently with the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent an amount in cash sufficient to pay the aggregate Merger Consideration pursuant to Section 1.4(a)(i) (such cash being hereinafter referred to as the “Payment Fund”). Except as contemplated by this Section 2.1(a), the Payment Fund shall not be used for any other purpose of exchanging other than to pay the Merger Consideration for:to holders of shares of Company Common Stock as of immediately prior to the Effective Time. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration.
(b) As soon as reasonably practicable following the Effective Time, Parent or the Surviving Corporation will cause the Paying Agent to mail to each holder of record (as of immediately prior to the Effective Time) of (i) a certificate or certificates representing that immediately prior to the Effective Time represented outstanding shares of Clearwire Capital Company Common Stock (the “Certificates”) or
); and (ii) uncertificated shares of Clearwire Capital Company Common Stock that represented outstanding shares of Company Common Stock (the “Uncertificated Shares”). Promptly after , in each case, that were converted into the Closing Date, NewCo will send, or will cause right to receive the Exchange Agent Merger Consideration pursuant to send, to each holder of shares of Clearwire Capital Stock at the Effective Time Section 1.4(a)(i) (A) a letter of transmittal in customary form and instructions that reasonably acceptable to the Company (which will specify that the delivery will shall be effected, and risk of loss and title will to the Certificates shall pass, only on upon proper delivery of the Certificates or transfer to the Paying Agent); and (B) instructions for use in effecting the surrender of the Certificates and Uncertificated Shares in exchange for the Merger Consideration payable in respect thereof pursuant to Section 1.4(a)(i). Upon surrender of Certificates for cancellation to the Exchange Paying Agent.
(b) Each holder , together with such letter of shares transmittal, duly completed and validly executed in accordance with the instructions thereto and such other documents as may reasonably be required by the Paying Agent, the holders of Clearwire Capital Stock such Certificates will be entitled to receive, on
(i) surrender in exchange therefor, an amount in cash equal to the Exchange Agent Merger Consideration payable in respect of a the number of shares of Company Common Stock represented by such Certificate, together with and the Certificates so surrendered will forthwith be cancelled. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name any surrendered Certificate is registered, it will be a condition precedent of payment that the Certificate so surrendered will be properly completed letter endorsed or will be otherwise in proper form for transfer, and the Person requesting such payment will have paid any transfer or other Taxes required by reason of transmittalthe payment of the Merger Consideration to a Person other than the registered holder of the Certificate so surrendered or will have established to the satisfaction of the Paying Agent or the Surviving Corporation that such Taxes either have been paid or are not payable. Notwithstanding the foregoing, or
(ii) upon receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares holders of Class A Common Stock constituting the Merger Consideration such Uncertificated Shares will be entitled to receive, in uncertificated book-entry formexchange therefor, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease an amount in cash equal to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stocknumber of shares of Company Common Stock represented by such holder’s transferred Uncertificated Shares, and the transferred Uncertificated Shares so surrendered will be cancelled. The Paying Agent will accept such Certificates and transferred Uncertificated Shares upon compliance with such reasonable terms and conditions as the Paying Agent may impose to cause an orderly exchange thereof in accordance with normal exchange practices. No interest will be paid or accrued for the benefit of holders of the Certificates and Uncertificated Shares on the Merger Consideration payable upon the surrender of such Certificates and Uncertificated Shares pursuant to this Section 2.1(b). Until so surrendered, outstanding Certificates and Uncertificated Shares will be deemed from and after the Effective Time to evidence only the right to receive the Merger Consideration, without interest thereon, payable in respect thereof pursuant to Section 1.4(a)(i). Notwithstanding anything to the contrary in this Agreement, no holder of Uncertificated Shares will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 1.4(a)(i).
(c) If any portion of the All Merger Consideration is paid upon the surrender of and in exchange for shares of Company Common Stock in accordance with the terms hereof shall be deemed to be have been paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the full satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After all rights pertaining to such Company Common Stock, subject, however, to Section 2.2. At the Effective Time, the stock transfer books of the Surviving Corporation will be closed and there will shall be no further registration of transfers on the stock transfer books of the Company or the Surviving Corporation of the shares of Clearwire Capital StockCompany Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Paying Agent, the Surviving Corporation or Parent for transfer or any other reason, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital shares of Company Common Stock provided forpreviously represented by such Certificates or Uncertificated Shares.
(d) Any portion of the Payment Fund that remains undistributed to the former stockholders of the Company on the date that is twelve (12) months after the Closing Date shall be delivered to Parent, upon demand, and, subject to Section 2.1(e), any former holders of shares of Company Common Stock who have not theretofore received the Merger Consideration shall thereafter look only to the Surviving Corporation and in accordance Parent (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the procedures set forthpayment of any Merger Consideration that may be payable upon surrender of any Certificates or Uncertificated Shares formerly held by such holders, in as determined pursuant to this Article 2Agreement, without any interest thereon.
(e) Any portion None of the Surviving Corporation, Parent, Merger Consideration made available to Subsidiary, or the Exchange Paying Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not shall be liable to any holder of shares of Clearwire Capital Company Common Stock for any amounts amount of Merger Consideration properly paid delivered to a public official under pursuant to any applicable abandoned propertyproperty law, escheat law or similar Lawslaw, rule, regulation, ordinance, code, statute, judgment, order, decree, ruling, treaty, convention, governmental directive, injunction or other binding directive, U.S. or non-U.S., of any governmental entity, including common law (“Law”). Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (If any Certificate or that earlier date, immediately before Uncertificated Share has not been surrendered prior to the time when that is immediately prior to the amounts time at which Merger Consideration in respect of such Certificate or Uncertificated Share would otherwise escheat to or become the property of any Governmental Authority) will becomegovernmental body, agency or authority, any such amount shall, to the extent permitted by applicable Law, become the property of NewCoParent, free and clear of any claims or interest of any Person previously entitled thereto.free
Appears in 1 contract
Samples: Agreement and Plan of Merger (Renewable Energy Group, Inc.)
Surrender and Payment. (a) Clearwire has appointed the Exchange Agent for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing DateEffective Time, NewCo the Surviving Corporation will send, or will cause the Exchange Escrow Agent to send, to each holder of shares record as of Clearwire Capital Stock at the Effective Time of Voicestream Common Shares (other than holders of Excluded Voicestream Shares and Dissenting Shares and holders of Voicestream Common Shares who made a valid Election with respect to all their shares), a letter of transmittal and instructions that will which shall specify that the delivery will of Certificates shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares a Certificate to the Exchange Escrow Agent, and instructions for use in effecting the surrender to the Escrow Agent of Certificates in exchange for the Merger Consideration (the "LETTER OF TRANSMITTAL"). The Letter of Transmittal shall contain such other terms and conditions as DT and Voicestream may reasonably specify.
(b) Each record holder of shares of Clearwire Capital Stock will be entitled any Voicestream Common Shares that have been converted into a right to receivereceive the consideration set forth in Section 1.05(b) shall, on
(i) upon surrender to the Exchange Escrow Agent of a CertificateCertificate or Certificates, together with a properly completed letter Letter of transmittalTransmittal covering the Voicestream Common Shares represented by such Certificate or Certificates, or
without further action, be entitled to receive, and the Escrow Agent shall deliver (and DT shall cause the Escrow Agent to deliver) to each such holder, subject to Section 1.06(e) below, (i) the number of whole DT Depositary Shares or DT Ordinary Shares included in the Merger Consideration in respect of such Voicestream Common Shares, subject to the provisions of Section 1.05, and (ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) a check in the case amount (after giving effect to any required tax withholdings) of a book-entry transfer of Uncertificated Shares, (A) the aggregate Merger Consideration cash consideration that the such holder has a the right to receive under pursuant to Section 2.51.05, plus (B) any cash in lieu of Fractional Interests to be paid pursuant to Section 1.09, plus (C) any cash dividends or other distributions that such holder has the right to receive pursuant to Section 1.06(f). The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry formUntil so surrendered, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergereach such Certificate shall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration payable number of whole DT Depositary Shares or DT Ordinary Shares, as applicable, to which it is entitled pursuant to Section 1.05 and the applicable amounts of cash provided in respect the foregoing clause (ii) of the Clearwire Capital Stockpreceding sentence.
(c) If any portion of the Merger Consideration is DT Depositary Shares or DT Ordinary Shares are to be paid delivered to a Person (as defined below) other than the Person in whose name registered holder of the surrendered Voicestream Common Shares represented by a Certificate or the transferred Uncertificated Share is registeredCertificates surrendered with respect thereto, it will shall be a condition to such issuance that the payment that
(i) either the Certificate or Certificates so surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the payment will such delivery shall pay to the Exchange Escrow Agent any transfer or other Taxes taxes required as a result of the payment such delivery to a Person other than the registered holder of the Certificate or Uncertificated Share such Voicestream Common Shares or establish to the satisfaction of the Exchange Escrow Agent that the Tax such tax has been paid or is not payable.
(d) After The stock transfer books of Voicestream shall be closed after the close of trading on the NASDAQ on the Trading Day immediately prior to the Effective Time, and thereafter there will shall be no further registration of transfers of shares of Clearwire Capital StockVoicestream Common Shares that were outstanding prior to the Effective Time. If, after After the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will the Surviving Corporation for transfer shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 2.I.
(e) Any portion DT Ordinary Shares issued and delivered in respect of Voicestream Common Shares pursuant to this Article I, any cash entitled to be received therefor pursuant to Section 1.05, and any cash in lieu of Fractional Interests to be paid pursuant to Section 1.09, plus any cash dividend or other distribution that such holder has the Merger Consideration made available right to the Exchange Agent under receive pursuant to Section 2.6(a1.06(f) that remains unclaimed by the holders any holder of shares of Clearwire Capital Stock twelve Voicestream Common Shares six months after the Closing Date will Effective Time, shall be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for held by the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect Escrow Agent (or a successor agent appointed by DT) or shall be delivered to the Merger ConsiderationDepositary upon the instruction of DT and held by the Depositary, in respect either case subject to the instruction of those shares without any interest thereonDT, in an account or accounts designated for such purpose. Regardless of the preceding sentence, NewCo will DT shall not be liable to any holder of shares of Clearwire Capital Stock Voicestream Common Shares for any amounts properly securities delivered or any amount paid by the Depositary, the Escrow Agent or its nominee, as the case may be, to a public official which it is so required to pay under applicable abandoned property, escheat or similar Lawsproperty laws. Any amounts cash remaining unclaimed by holders of shares of Clearwire Capital Stock six Voicestream Common Shares five years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the amounts as such cash would otherwise escheat to or become property of any Governmental Authoritygovernmental entity or as is otherwise provided by applicable Legal Requirements (as defined below)) will becomeshall, to the extent permitted by applicable LawLegal Requirements, become the property of NewCothe Surviving Corporation or DT, free and clear as DT may determine.
(f) No dividends or other distributions nor any voting rights with respect to securities of DT issuable to the Escrow Agent with respect to Voicestream Common Shares shall be paid to or exercised by the holder of any claims unsurrendered Certificates until such Certificates are surrendered as provided in this Section. Subject to the effect of applicable Legal Requirements, upon such surrender, there shall be issued and/or paid to the holder of DT Depositary Shares or DT Ordinary Shares issued in exchange therefor, without interest and after giving effect to any required tax withholding, (A) at the time of such surrender, the dividends or other distributions payable with respect to such DT Depositary Shares or DT Ordinary Shares 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 (B) at the appropriate payment date, the dividends or other distributions payable with respect to such DT Depositary Shares or DT Ordinary Shares 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 DT Depositary Shares or DT Ordinary Shares, all DT Depositary Shares and DT Ordinary Shares to be issued pursuant to the Merger shall be deemed issued and outstanding as of the Effective Time. Notwithstanding the foregoing, no dividends or other distributions nor any Person previously entitled theretovoting rights with respect to securities of DT issuable to the Escrow Agent for the account of the Dissenting Stockholders Trustee, the Optionholders Trustee, the 7% Convertible Preferred Shares Trustee, the Restricted Shares Trustee and the Xxxx Inlet Trustee (all as defined below) shall be paid to or exercised by any such trustees.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Ecolab will appoint an exchange agent reasonably acceptable to Nalco (the "Exchange Agent Agent") for the purpose of exchanging the Certificates for Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly As soon as reasonably practicable after the Closing DateEffective Time, NewCo but in no event more than two Business Days following the Effective Time, Ecolab will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital Nalco Common Stock at as of the Effective Time Time, whose shares of Nalco Common Stock were converted into the right to receive the Merger Consideration, a letter of transmittal and instructions that (which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) to the Exchange Agent) in such form as Nalco and Ecolab may reasonably agree, 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.
(b) At or prior to the Effective Time, Ecolab will cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of shares of Nalco Common Stock, shares of Ecolab Common Stock and an amount of cash in U.S. dollars sufficient to be issued and paid pursuant to Section 2.7 and Section 2.8, payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article III. Following the Effective Time, Ecolab will make available to the Exchange Agent, when and as needed, cash in U.S. dollars sufficient to pay any dividends and other distributions pursuant to Section 3.1(g). All cash and book-entry shares representing shares of Ecolab Common Stock deposited with the Exchange Agent are referred to in this Agreement as the "Exchange Fund." The Exchange Agent will, pursuant to irrevocable instructions, deliver the appropriate Merger Consideration 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 Ecolab; provided that no such investment or losses thereon will affect the Merger Consideration payable to holders of shares of Nalco Common Stock entitled to receive such consideration or cash in lieu of fractional interests and Ecolab will promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of shares of Nalco Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments will be the property of, and paid to, Ecolab.
(c) Each holder of shares of Clearwire Capital Nalco Common Stock will be entitled that have been converted into the right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent Agent, will be entitled to receive in exchange therefor (or other evidencei) the number of shares of Ecolab Common Stock representing, in the aggregate, the whole number of shares of Ecolab Common Stock, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the such holder has a the right to receive under 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 and dividends and other distributions payable pursuant to Section 2.53.1(g), pursuant to Section 2.7, Section 2.8, Article II and this Article III. The shares of Class A Common Stock constituting Following the Election Deadline, the Merger Consideration will be in uncertificated book-entry formpaid as promptly as practicable (by mail or, unless a physical certificate is requested to the extent commercially practicable, made available for collection by hand if so elected by the surrendering holder or is otherwise required under applicable Law. As of a result Certificate) after receipt by the Exchange Agent of the MergerCertificate and letter of transmittal in accordance with the foregoing. No interest will be paid or accrued on any Merger Consideration, at the Effective Time, all cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital StockCertificates.
(cd) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the of such payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) that the Person requesting the such payment will pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or Uncertificated Share will establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. 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 will be a condition to the registration thereof that the surrendered Certificate will be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the 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 Certificate or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(de) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Nalco Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Nalco Common Stock outstanding immediately prior to the Effective Time will cease to have any rights with respect to such shares of Nalco Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Exchange Agent or Ecolab, they will be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, forth in Article II and this Article III. Notwithstanding anything to the contrary contained in this Article 2Agreement, the 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 Nalco on shares of Nalco 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 Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital Nalco Common Stock twelve months one year after the Closing Date Effective Time will be returned to NewCoEcolab, on upon demand. Any , and any such holder who has not exchanged his or her shares of Clearwire Capital Nalco Common Stock for the Merger Consideration in accordance with this Section 2.6 before Article II prior to that date time will thereafter look only to NewCo Ecolab for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such holder's shares without any interest thereonof Nalco Common Stock. Regardless Notwithstanding the foregoing, none of Ecolab, Merger Sub, the preceding sentence, NewCo Surviving Corporation or the Nalco will not be liable to any holder of shares of Clearwire Capital Nalco Common Stock for any amounts properly paid Merger Consideration delivered to a public official under pursuant to applicable abandoned property, escheat or similar property Laws. Any amounts Merger Consideration remaining unclaimed by holders of shares of Clearwire Capital Nalco Common Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeAuthority will, to the extent permitted by applicable LawLaws, become the property of NewCo, Ecolab free and clear of any claims or interest of any Person previously entitled thereto.
(g) No dividends or other distributions with respect to shares of Ecolab Common Stock issued in the Merger will be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 3.1. Following such surrender, subject to the effect of escheat, Tax or other applicable Laws, there will be paid, without interest, to the record holder of the shares of Ecolab Common Stock, if any, issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of any such shares of Ecolab 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 Ecolab 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 with respect to shares of Ecolab Common Stock, all shares of Ecolab Common Stock to be issued pursuant to the Merger will be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Ecolab Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the --------------------- Effective Time, RHCI shall appoint an agent reasonably acceptable to the Company (which may be First Union National Bank of North Carolina ("First Union of North Carolina")) (the "Exchange Agent") for the purpose of exchanging certificates representing Shares and Company Preferred Shares. As of the Effective Time, RHCI shall deposit with the Exchange Agent for the purpose benefit of exchanging the Merger Consideration for:
holders of Shares and Company Preferred Shares, as the case may be, for exchange in accordance with this Section 1.03, through the Exchange Agent, (i) certificates representing the shares of Clearwire Capital RHCI Common Stock (the “Certificates”) or
issuable pursuant to Section 1.02 in exchange for outstanding Shares and (ii) uncertificated certificates representing the shares of Clearwire Capital RHCI Series 1996 Preferred Stock (the “Uncertificated issuable pursuant to Section 1.02 in exchange for outstanding Company Preferred Shares”). Promptly after the Closing DateEffective Time, NewCo RHCI will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Shares and Company Preferred Shares, as the case may be, at the Effective Time a letter of transmittal and instructions that will for use in such exchange (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates certificates representing Shares or transfer of Company Preferred Shares, as the Uncertificated Shares case may be, to the Exchange Agent).
(bi) Each holder of shares of Clearwire Capital Stock will be entitled Shares that have been converted into a right to receivereceive RHCI Common Stock, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Shares, together with a properly completed letter of transmittaltransmittal covering such Shares, orwill be entitled to receive in exchange therefor (1) that number of whole shares of RHCI Common Stock which such holder has the right to receive pursuant to Section 1.02, and (2) cash in lieu of fractional shares of RHCI Common Stock which such holder has the right to receive pursuant to Section 1.06, and the certificate or certificates for Shares so surrendered shall be cancelled. Until so surrendered, each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive upon such surrender the certificate representing shares of RHCI Common Stock and cash in lieu of any fractional shares of RHCI Common Stock as contemplated by this Section 1.03 and Section 1.06.
(ii) receipt Each holder of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration Company Preferred Shares that the holder has have been converted into a right to receive under Section 2.5. The RHCI Series 1996 Preferred Stock, upon surrender to the Exchange Agent of a certificate or certificates representing such Company Preferred Shares, together with a properly completed letter of transmittal covering such Company Preferred Shares, will be entitled to receive in exchange therefor that number of whole shares of Class A Common RHCI Series 1996 Preferred Stock constituting which such holder has the Merger Consideration will right to receive pursuant to Section 1.02, and the certificate or certificates for Company Preferred Shares so surrendered shall be in uncertificated book-entry formcancelled. Until so surrendered, unless a physical each such certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergershall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stockpurposes, except only the right to receive upon such surrender the Merger Consideration payable in respect certificate representing shares of the Clearwire Capital StockRHCI Series 1996 Preferred Stock as contemplated by this Section 1.03.
(c) If any portion shares of RHCI Common Stock or RHCI Series 1996 Preferred Stock, as the Merger Consideration is case may be, are to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment issued to a Person other than the registered holder of the Certificate Shares or Uncertificated Share the Company Preferred Shares, respectively, represented by the certificate or certificates surrendered in exchange therefor, it shall be a condition to such issuance 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 issuance shall pay to the Exchange Agent any transfer or other taxes required as a result of such issuance to a Person other than the registered holder of such Shares or such Company Preferred Shares or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable. For purposes of this Agreement, "Person" means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed At the Exchange Agent for Effective Time, all Company Common Stock and all Warrants outstanding immediately prior to the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, NewCo will sendand, or will cause the Exchange Agent subject to sendSection 2.7, to each holder of shares a certificate formerly representing any Company Common Stock (each, a “Certificate”) and each holder of Clearwire Capital Stock at the Effective Time record of a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery Warrant shall cease to have any rights as a stockholder of the Certificates Company or transfer a holder of the Uncertificated Shares to the Exchange AgentWarrants.
(b) Each Prior to the Effective Time, Purchaser shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, the Exchange Agent shall mail to each holder of shares Company Common Stock a letter of Clearwire Capital Stock will be entitled transmittal in substantially the form attached as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to receive, on
Section 2.5(c). No later than the later of (i) surrender the Closing Date or (ii) subject to the Exchange Agent Section 2.12, two (2) Business Days after receipt of a Certificate, together with a properly Letter of Transmittal duly completed letter and validly executed in accordance with the instructions thereto, and any other customary documents that the Exchange Agent or Parent may reasonably require in connection therewith, (1) the Exchange Agent shall pay to such Stockholder a cash amount, and (2) Parent shall issue such number of transmittalshares of Parent Common Stock as provided in Section 2.5(c) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, orno interest shall be paid or shall accrue on consideration payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.5(c). If after the Effective Time, any Certificate is presented to the Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.8.
(d) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, the Company shall mail to each Warrantholder a Warrant Termination Agreement substantially in the form attached as Exhibit B (a “Warrant Termination Agreement”) and instructions for completing, executing and returning such Warrant Termination Agreement in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.6(a). No later than the later of (i) the Closing Date or (ii) two (2) Business Days after receipt of an “agent’s message” by a Warrant Termination Agreement duly completed and validly executed in accordance with the Exchange Agent (or instructions thereto and any other evidence, if any, of transfer as customary documents that the Exchange Agent may reasonably requestrequire in connection therewith, (i) in the case Exchange Agent shall pay to such Warrantholder a cash amount, and (ii) the Parent shall issue such number of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Parent Common Stock constituting the Merger Consideration will be as provided in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights Section 2.6(a) with respect to the Clearwire Capital StockIn-Money Warrants in respect of which the Warrant Termination Agreement was delivered. Unless otherwise provided herein, except the right to receive the no interest shall be paid or shall accrue on any Merger Consideration payable upon delivery of any Warrant Termination Agreement.
(e) Each Stockholder and Warrantholder shall also be entitled to any amounts that may be payable in the future in respect of the Clearwire Capital StockCompany Common Stock formerly represented by such Certificate and the cancelled In-Money Warrants from the Holdback Amount as provided in this Agreement and on account of the Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein. Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of Stockholders or Warrantholders on the Merger Consideration.
(cf) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferredtransfer, and
and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes Tax required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the reasonable satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(dg) After Each holder of a Certificate or In-Money Warrant who has not theretofore complied with the Effective Timeexchange procedures set forth in and contemplated by this Section 2.8 shall look only to Purchaser (subject to abandoned property, there will be no further registration escheat and similar applicable Law) for its claim, only as a general unsecured creditor thereof, to any portion of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable or issuable pursuant to this Agreement in respect of such Certificate or In-Money Warrant. Notwithstanding anything to the Clearwire Capital Stock provided forcontrary contained herein, if any Certificate or In-Money Warrant has not been surrendered prior to the earlier of the first anniversary of the Effective Time and such date on which the applicable portion of the Merger Consideration payable or issuable pursuant to this Agreement in accordance with respect of such Certificate or In-Money Warrant would otherwise escheat to, or become the procedures set forthproperty of, any Governmental Body, any amounts payable in this Article 2respect of such Certificate or In-Money Warrant shall, to the extent permitted by Law, become the property of Purchaser, free and clear of all claims or interests of any Person previously entitled thereto.
(eh) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders in respect of shares of Clearwire Capital Stock twelve months after the Closing Date will any Dissenting Shares shall be returned to NewCoPurchaser, on upon demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent (the "Exchange Agent Agent") for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Common Stock (the “"Certificates”") or
for the Merger Consideration. At or prior to the Effective Time, Parent will make available, or cause to be made available, to the Exchange Agent, the aggregate Closing Merger Consideration (iiand if Section 2.02(d) uncertificated is applicable, the aggregate Additional Merger Consideration, if any) to be paid in respect of the shares of Clearwire Capital Stock (the “Uncertificated Shares”)Common Stock. Promptly after the Closing DateEffective Time, NewCo Parent will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Common Stock at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Common Stock that have been converted into the right to receive the Merger Consideration will be entitled to receivereceive promptly following the Effective Time, on
(i) upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
the Closing Merger Consideration (iiand if Section 2.02(d) receipt of an “agent’s message” by is applicable, the Exchange Agent (or other evidenceAdditional Merger Consideration, if any, of transfer as the Exchange Agent may reasonably request) in respect of the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry formrepresented by such Certificate. Until so surrendered, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at each such Certificate shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to such payment that the payment that
(i) either the Certificate so surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable. Additional Merger Consideration shall only be paid to those Persons who receive the Closing Merger Consideration.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2Article.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under pursuant to Section 2.6(a2.04(a) that remains unclaimed by the holders of shares of Clearwire Capital Common Stock twelve six months after the Closing Date will Effective Time shall be returned to NewCothe Surviving Corporation, on upon demand. Any , and any such holder who has not exchanged such shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before Article prior to that date will time shall thereafter look only to NewCo the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will not neither Parent nor the Surviving Corporation shall be liable to any holder of shares of Clearwire Capital Common Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Common Stock six three years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authoritygovernmental authority) will shall become, to the extent permitted by applicable Lawlaw, the property of NewCo, the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto, other than any such claim or interest which any Person would otherwise have thereto under applicable law if such amounts had escheated to, or otherwise become the property of, any governmental authority, provided such Person establishes such claim or interest as if such claim or interest were to be established pursuant to applicable law if such amounts had escheated to, or otherwise become the property of, any governmental authority.
(f) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.04(a) to pay for shares of Common Stock for which appraisal rights have been perfected pursuant to Section 2.05 hereto shall be returned to Surviving Corporation, upon demand.
(g) Parent shall enter into an exchange agent agreement with the Exchange Agent which shall set forth the duties, responsibilities and obligations of the Exchange Agent consistent with the terms of this Agreement and otherwise reasonably satisfactory to Parent and the Company.
Appears in 1 contract
Samples: Merger Agreement (Software Ag)
Surrender and Payment. 1. Prior to the Effective Time, Elcotel shall appoint an agent reasonably satisfactory to TSG (athe "Exchange Agent") Clearwire has appointed the Exchange Agent for the purpose of exchanging certificates representing Shares for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly after the Closing DateEffective Time (but in any event within five business days thereafter), NewCo Elcotel will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Shares at the Effective Time (i) a letter of transmittal and instructions that will for use in such exchange (which shall specify that delivery of the delivery will Merger Consideration shall be effected, and risk of loss and title will to the certificates representing TSG Common Stock shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent.) and (ii) instructions for use in effecting the surrender of the certificates representing Shares in exchange for the certificates representing Elcotel Common Stock and cash in lieu of fractional shares of Elcotel Common Stock. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of certificates theretofore representing Shares for any amount which may be required to be paid to a public official pursuant to any applicable abandoned property, escheat or similar law;
(b) 2. Each holder of shares of Clearwire Capital Stock will be entitled Shares that have been converted into a right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Shares, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated transmittal covering such Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right entitled to receive the Merger Consideration payable in respect of such Shares and any dividends payable pursuant to Section 1.03(f). Until so surrendered, each such certificate shall, after the Clearwire Capital Stock.Effective Time, represent for all purposes only the right to receive the Merger Consideration and any dividends payable pursuant to Section 1.03(f) and the holder thereof shall not be entitled to vote the Elcotel Common Stock until such certificate is surrendered;
(c) 3. If any portion of the certificate representing Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment delivered to a Person other than the registered holder of the Certificate Shares represented by the certificate or Uncertificated Share certificates surrendered in exchange therefor, it shall be a condition to the issuance of such certificate evidencing Elcotel Common Stock 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 payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of shares of Elcotel Common Stock to a Person other than the registered holder of such Shares represented by the certificate or certificates so surrendered or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.applicable;
(d) 4. After the Effective Time, there will shall be no further registration of transfers of shares Shares on the stock transfer book of Clearwire Capital StockTSG. If, after the Effective Time, Certificates or Uncertificated certificates representing Shares are presented to NewCothe Surviving Corporation, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 2.I;
(e) 5. Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve Shares six months after the Closing Date will Effective Time shall be returned to NewCoElcotel, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock his Shares for the Merger Consideration in accordance with this Section 2.6 before 1.03 prior to that date will time shall thereafter look only to NewCo Elcotel for payment of the Merger Consideration. Notwithstanding the foregoing, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will Elcotel shall not be liable to any holder of shares of Clearwire Capital Stock Shares for any amounts properly amount paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawsproperty laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six Shares seven years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeshall, to the extent permitted by applicable Lawlaw, become the property of NewCo, Elcotel free and clear of any claims or interest of any Person previously entitled thereto;
6. No dividends or other distributions with respect to Elcotel Common Stock issued in the Merger shall be paid to the holder of any unsurrendered certificates representing Shares until such certificates are surrendered as provided in this Section 1.03. Subject to the effect of applicable laws, following the surrender of such certificates, there shall be paid, without interest, to the record holder of the Elcotel Common Stock issued in exchange therefor at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time payable prior to or on the date of such surrender with respect to such whole shares of Elcotel Common Stock and not previously paid, less the amount of any withholding taxes which may be required thereon;
7. In the event any certificate representing Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of the fact by the person claiming such certificate to be lost, stolen or destroyed, Elcotel will, after the Effective Time, issue in exchange for such lost, stolen or destroyed certificate the certificate evidencing shares of Elcotel Common Stock deliverable in respect thereof, as determined in accordance with this Article I. When authorizing such issue of the certificate of shares of Elcotel Common Stock in exchange therefor, Elcotel may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate to give Elcotel a bond in such sum as it may direct as indemnity against any claim that may be made against Elcotel with respect to the certificate alleged to have been lost, stolen or destroyed; and
8. Approval and adoption of this Agreement by the stockholders of TSG shall constitute, as an integral part of the Merger, ratification of the appointment of, and the reappointment of, said Exchange Agent.
Appears in 1 contract
Samples: Merger Agreement (Technology Service Group Inc \De\)
Surrender and Payment. (a) Clearwire has appointed Prior to the OpCo Merger Effective Time, Acquiror shall appoint an exchange agent (the “Exchange Agent Agent”) reasonably satisfactory to the Company, it being agreed that Continental Stock Transfer & Trust Company is an acceptable Exchange Agent, for the purpose of exchanging distributing the consideration payable in respect of Acquiror Class B Common Stock and the Xxxxx Xxxxxxx Consideration, FTV Blocker Consideration and Company Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing Date, NewCo will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock at the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares payable pursuant to the Exchange Agentprovisions of this Article II.
(b) Each holder Prior to the OpCo Merger Effective Time, Acquiror shall cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of Company Membership Units and Company Equity Awards, for payment in accordance with this Article II, (i) the Total Cash Consideration and (ii) a number of shares of Clearwire Capital Acquiror Class A Common Stock will and Acquiror Class C Common Stock sufficient to deliver the Xxxxx Xxxxxxx Consideration and FTV Blocker Consideration and the Company Merger Consideration, in each case, payable pursuant to this Agreement. All cash and book-entry shares representing shares of Acquiror Class A Common Stock and Acquiror Class C Common Stock deposited by Acquiror with the Exchange Agent for distribution pursuant to this Article II are referred to in this Agreement as the “Exchange Fund.” The Exchange Agent will, pursuant to irrevocable instructions to be entitled to receive, on
(i) surrender delivered to the Exchange Agent of a Certificateby Acquiror, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by deliver the Exchange Agent (or other evidenceappropriate cash amount, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The and shares of Acquiror Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result and Acquiror Class C Common Stock out of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect Exchange Fund pursuant to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect provisions of the Clearwire Capital Stockthis Article II. The Exchange Fund will 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 Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the OpCo Merger Effective Time, there will be no further registration of transfers of shares of Clearwire Capital StockCompany Membership Units or Company Equity Awards. If, From and after the OpCo Merger Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled the Company Unitholders and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date Company Equity Awards will be returned cease to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and have any dividends and distributions rights with respect to the Merger ConsiderationCompany Membership Units or Company Equity Awards, except as otherwise provided in this Agreement, by applicable Law or, in respect the case of those provisionally vested Class C Units or Company Equity Awards, by the Time Vesting Provisions Schedule.
(d) No fractional shares without any interest thereon. Regardless of Acquiror Class A Common Stock, Acquiror Class C Common Stock or Company Class EX Units shall be issued by virtue of the preceding sentenceBlocker Mergers or the OpCo Merger. Each holder of Company Membership Units or vested Company Equity Awards who would otherwise be entitled to receive a fraction of a share of Acquiror Class A Common Stock (after aggregating all fractional shares of Acquiror Class A Common Stock issuable to such holder) or a fractional Company Class EX Unit (and corresponding fractional share of Acquiror Class C Common Stock) shall, NewCo will not in lieu of such fractional thereof, be liable paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by $10.00; provided, for the avoidance of doubt, that no cash shall be payable with respect to any holder fractional share of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretoAcquiror Class C Common Stock.
Appears in 1 contract
Samples: Business Combination Agreement (Spartan Acquisition Corp. II)
Surrender and Payment. I.4.1. Prior to the Effective Time, BP Amoco shall appoint an agent reasonably acceptable to ARCO as exchange agent (athe "Exchange Agent") Clearwire has appointed the Exchange Agent for -------------- the purpose of exchanging accepting Certificates to be surrendered by holders of ARCO Common Shares in exchange for BP Amoco Depositary Shares or, if and to the Merger Consideration for:extent elected by a holder of ARCO Common Shares in the manner provided in this Section 1.4.1, for BP Amoco Ordinary Shares in registered form, and letters of transmittal as described in this Section 1.4.
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)1. Promptly after the Closing DateEffective Time, NewCo the Surviving Corporation will send, or will cause the Exchange Agent to send, to each holder of shares record as of Clearwire Capital Stock at the Effective Time of ARCO Common Shares (other than holders of Excluded ARCO Shares) (i) a letter of transmittal, in such form or forms as ARCO and BP Amoco may reasonably agree, for use in effecting delivery of Certificates to the Exchange Agent and including a form of election by which each holder of ARCO Common Shares may elect, subject to the provisions of this Section 1.4.1, to receive (the "Ordinary Share Election") all or part of the ----------------------- Merger Consideration to which such holder is entitled in the form of BP Amoco Ordinary Shares in registered form, rather than in the form of BP Amoco Depositary Shares (such BP Amoco Ordinary Shares or BP Amoco Depositary Shares to be received by a holder being referred to in this Agreement as "BP Amoco Shares"), and (ii) instructions for surrendering --------------- ARCO Common Shares in exchange for the BP Amoco Shares, and any cash in lieu of fractional interests in BP Amoco Depositary Shares and any cash dividends or other distributions, that such holder has the right to receive pursuant to this Article I. ARCO, acting as agent for each holder of record as of the Effective Time of ARCO Common Shares (other than Excluded ARCO Shares), shall prior to the Effective Time appoint Exchange Nominees Limited or such other agent as may be reasonably acceptable to BP Amoco (the "Nominee"), as nominee and agent for and on behalf of the holders of ------- ARCO Common Shares in connection with the issuance of BP Amoco Depositary Shares or BP Amoco Ordinary Shares in accordance with this Article I, subject to the terms and conditions of this Agreement and an exchange agent and nominee agreement among BP Amoco, ARCO, the Exchange Agent and the Nominee. BP Amoco shall issue the BP Amoco Ordinary Shares referred to in Section 1.3.4 in registered form to the Nominee. The BP Amoco Ordinary Shares held by the Nominee shall be deposited by the Nominee or on its behalf with the Depositary (or as it may direct) as and when required for the issuance of BP Amoco Depositary Shares, or delivered by the Nominee to holders of ARCO Common Shares in accordance with any Ordinary Share Election, in each case in accordance with this Article I. To the extent required, the Nominee will requisition from the Depositary, from time to time, such number of BP Amoco Depositary Shares, in such denominations as the Nominee shall specify, as are issuable in respect of ARCO Common Shares properly delivered to the Exchange Agent that are not subject to an Ordinary Share Election. Each holder of ARCO Common Shares entitled to receive the Merger Consideration in accordance with Section 1.3.2 may exercise the Ordinary Share Election only by returning to the Exchange Agent prior to the close of business on the 42nd day following the Closing Date a properly completed letter of transmittal and form of election. Any such holder of ARCO Common Shares may make an Ordinary Share Election with respect to any or all of such holder's ARCO Common Shares, provided that (i) the number of BP Amoco -------- Ordinary Shares to which any such holder will be entitled in respect of such Ordinary Share Election shall not be less than six and shall be an integral multiple of six; (ii) any number of BP Amoco Ordinary Shares less than six or in excess of an integral multiple thereof ("Excess Ordinary --------------- Shares") shall constitute a fractional interest in a BP Amoco Depositary ------ Share; and (iii) such holder will therefore be entitled only to cash in lieu of Excess Ordinary Shares in accordance with Section 1.6. Only BP Amoco Depositary Shares shall be issued as Merger Consideration with respect to ARCO Common Shares for which the holder of such ARCO Common Shares shall not have exercised an Ordinary Share Election prior to the close of business on the 42nd day following the Closing Date or for which the holder shall have delivered to the Exchange Agent prior to such time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares declining to the Exchange Agentmake an Ordinary Share Election.
(b) I.4.2. Each holder of shares of Clearwire Capital Stock will be entitled any ARCO Common Shares that have been converted into a right to receivereceive the consideration set forth in Section 1.3.2 shall, on
(i) in the case of a holder of a Certificate, upon surrender to the Exchange Agent of a such Certificate, together with a properly completed letter of transmittal, or
transmittal covering the ARCO Common Shares represented by such Certificate and (ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer holder of Uncertificated uncertificated ARCO Common Shares, upon delivery to the aggregate Merger Consideration Exchange Agent prior to the close of business on the 42nd day following the Closing Date of a properly completed letter of transmittal and, after such time, without any further action on the part of such holder of uncertificated ARCO Common Shares, in case (i) and in case (ii), be entitled to receive (x) the number of BP Amoco Depositary Shares or BP Amoco Ordinary Shares (excluding any fractional interest in a BP Amoco Depositary Share), to which such holder is entitled in respect of such ARCO Common Shares pursuant to Sections 1.3.2 and 1.4.1 and (y) a check in the amount (after giving effect to any required tax withholdings) of (I) any cash in lieu of fractional interests in BP Amoco Depositary Shares to be paid pursuant to Section 1.6, plus (II) any cash dividends or other distributions that the such holder has a the right to receive under pursuant to Section 2.51.4.6. The shares Until such time as any such holder of Class A ARCO Common Stock constituting the Merger Consideration will be in uncertificated book-entry formShares has become entitled to receive such BP Amoco Shares, unless such holder's ARCO Common Shares (whether or not represented by a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the MergerCertificate) shall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration payable to which such holder is entitled and the applicable amounts provided in respect of the Clearwire Capital Stockforegoing clause (y).
(c) I.4.3. If any portion of the Merger Consideration is BP Amoco Shares are to be paid issued or transferred to a Person person other than the Person in whose name registered holder of the surrendered ARCO Common Shares represented by a Certificate or the transferred Uncertificated Share is registeredCertificates surrendered with respect thereto, it will shall be a condition to such issue or transfer that the payment that
(i) either the Certificate or Certificates so surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer and that the person requesting such issue or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will transfer shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the payment such issue or transfer to a Person person other than the registered holder of the Certificate or Uncertificated Share such ARCO Common Shares or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) I.4.4. After the close of the stock transfer books of ARCO on the day prior to the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockARCO Common Shares that were outstanding prior to the Effective Time. If, after After the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will the Surviving Corporation for transfer shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, in this Article 2.I.
(e) Any portion of I.4.5. After the Merger Consideration made available 42nd day after the Closing, any BP Amoco Ordinary shares and any cash amounts then held by the Nominee shall be deposited by the Nominee with the Depositary or on its behalf for the issuance or delivery to the Exchange Agent under Section 2.6(a) that remains unclaimed by the Agent, as and when required, of BP Amoco Depositary Shares and any cash amounts which may thereafter be issuable or deliverable to holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demandARCO Common Shares. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat BP Amoco Depositary Shares issuable or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.deliverable in
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint an agent (the “Exchange Agent”) and enter into an agreement with the Exchange Agent (the “Exchange Agent Agreement”) for the purpose of exchanging for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Company Stock (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Company Stock (the “Uncertificated Shares”). Promptly after On or prior to the Closing Date, NewCo will Parent shall deposit with the Exchange Agent, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. As soon as practicable after the Effective Time (and in any event no later than five (5) Business Days after the Effective Time), Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Stock at the Effective Time a letter of transmittal (“Letter of Transmittal”) and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Company Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a CertificateCertificate (or a Lost Certificate Affidavit), together with a properly completed letter Letter of transmittalTransmittal, 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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of the holder has Company Stock represented by a right to receive under Section 2.5Certificate or Uncertificated Share. The shares of Class A Common Parent Stock constituting the part of such Merger Consideration will Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by the a holder of shares of Company Stock or is otherwise required under applicable Applicable Law. As a result of Until so surrendered or transferred, as the Mergercase may be, at each such Certificate or Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of and the Clearwire Capital Stockright to receive any dividends or distributions pursuant to Section 2.04(f).
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to deposited with the Exchange Agent under pursuant to Section 2.6(a2.04(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve (12) months after the Closing Date will Effective Time shall be returned to NewCoParent upon demand, on demand. Any and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.04 prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect thereto pursuant to the Merger ConsiderationSection 2.04(f), in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six two (2) years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) 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 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 2.04. Following such surrender or transfer, there shall be paid, without interest and in addition to the applicable amount payable pursuant to this Article 2, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled 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 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.
Appears in 1 contract
Samples: Merger Agreement (INFOSONICS Corp)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, the Company shall appoint an agent (the “Exchange Agent Agent”) for the purpose of exchanging the Merger Consideration for:
(i) certificates representing that evidence shares of Clearwire Capital Class B Common Stock for certificates evidencing the shares of Common Stock (the “Certificates”) or
(ii) uncertificated shares to which the holder shall be entitled as a result of Clearwire Capital Stock (the “Uncertificated Shares”)Recapitalization. Promptly after the Closing DateEffective Time, NewCo will the Company shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Class B Common Stock at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Class B Common Stock will that have been converted into shares of Common Stock shall be entitled to receive, on
(i) upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
(ii) receipt certificates evidencing shares of an “agent’s message” Common Stock in respect of the shares of Class B Common Stock evidenced by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5Certificate. The shares of Class A Common Stock constituting issued as part of such Recapitalization, at the Merger Consideration will Company’s option, shall be in uncertificated book-entry form, transmitted to the holder through the Depository Trust Company’s electronic delivery system, unless a physical certificate is requested by the a holder of a Certificate or is otherwise required under applicable Lawlaw. As a result of The Exchange Agent shall accept such Certificates upon compliance with such reasonable terms and conditions as the Merger, at Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. From and after the Effective Time, all shares of Clearwire Capital Class B Common Stock will cease shall no longer be deemed to be outstanding and each holder shall not have the status of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Class B Common Stock, and all rights of the holders of Class B Common Stock shall cease, except for the right to receive shares of Common Stock in accordance with the Merger Consideration payable in respect of the Clearwire Capital StockRecapitalization.
(c) If any portion of the Merger Consideration Common Stock to which a holder is entitled is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registeredissued, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Class B Common Stock six two years after the Closing Date Effective Time (or that such earlier date, immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authoritygovernmental authority) will shall become, to the extent permitted by applicable Lawlaw, the property of NewCo, the Company free and clear of any claims or interest of any Person previously entitled thereto.
(e) No dividends or other distributions with respect to the Common Stock issued as a result of the Recapitalization, and no cash payment in lieu of fractional shares as provided in Section 1.05, shall be paid to the holder of any Certificates representing shares of Class B Common Stock not surrendered until such Certificates are surrendered as provided in this Section.
(f) The Company and the Exchange Agent may establish other arrangements consistent with the intent of this Section 1.03 to effect the exchange of shares of Class B Common Stock held in book-entry form for shares of Common Stock into which they are reclassified and converted as result of the Recapitalization.
Appears in 1 contract
Samples: Recapitalization Agreement (Commonwealth Telephone Enterprises Inc /New/)
Surrender and Payment. (a) Clearwire has appointed Bellwether shall authorize one or more transfer agent(s) reasonably acceptable to Bargx xx act as Exchange Agent hereunder (the "EXCHANGE AGENT") with respect to the Merger. At or prior to the Effective Time, Bellwether shall deposit with the Exchange Agent for the purpose benefit of exchanging the holders of Bargx Xxxmon Stock and Bargx X Xreferred Stock, for exchange in accordance with this Section 3.2 through the Exchange Agent, Bellwether Common Stock and cash (collectively, the "EXCHANGE FUND"). The Exchange Agent shall, pursuant to irrevocable instructions, deliver the applicable Merger Consideration for:in exchange for surrendered Stock Certificates pursuant to Section 3.1 out of the Exchange Fund. Except as contemplated by Section 3.2(e), the Exchange Fund shall not be used for any other purpose.
(ib) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing DateEffective Time, NewCo but in any event not later than five business days thereafter, Bellwether will send, or will cause the Exchange Agent to send, to each holder of shares a Stock Certificate or Certificates that immediately prior to the Effective Time represented outstanding Bargx Xxxmon Stock or Bargx X Xreferred Stock a letter of Clearwire Capital transmittal and instructions for use in effecting the exchange of such Stock at Certificates for certificates representing the Stock Consideration and the Cash Consideration (with respect to the Bargx Xxxmon Stock) or the Preferred Stock Merger Consideration (with respect to the Bargx X Xreferred Stock). Provision also shall be made for holders of Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions that will specify that and to deliver in person immediately after the delivery will be effectedEffective Time such letter of transmittal and Stock Certificates in exchange for the applicable Merger Consideration.
(c) After the Effective Time, and risk of loss and title will passStock Certificates shall represent the right, only on proper delivery of the Certificates or transfer of the Uncertificated Shares upon surrender thereof to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) surrender to the Exchange Agent of a Certificate, together with a duly executed and properly completed letter of transmittaltransmittal relating thereto, or
(ii) receipt of an “agent’s message” by to receive in exchange therefor the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate applicable Merger Consideration that subject to any required tax withholding, and the holder has a right to receive under Section 2.5Stock Certificates so surrendered shall be canceled. The shares of Class A Common Stock constituting the Merger Consideration No interest will be in uncertificated book-entry formpaid or will accrue on any cash amount payable upon the surrender of any such Stock Certificates. Until so surrendered, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergereach such Stock Certificate shall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the applicable Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(cd) If any portion shares of the Merger Consideration is Bellwether Common Stock are to be issued and/or cash to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Stock Certificate or Uncertificated Share Certificates surrendered in exchange therefor, it shall be a condition to such issuance or payment that the Stock Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such issuance shall pay to the Exchange Agent any transfer or other taxes required as a result of such issuance to a Person other than the registered holder or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After the Effective Timeapplicable. For this Agreement, there will be no further registration of transfers of shares of Clearwire Capital Stock. If"PERSON" means an individual, after the Effective Timea corporation, Certificates a limited liability company, a partnership, an association, a trust or Uncertificated Shares are presented to NewCoany other entity or organization, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to including a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent will appoint an exchange agent reasonably acceptable to OUTD (the “Exchange Agent Agent”) for the purpose of exchanging the OUTD Certificates for Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly As soon as reasonably practicable after the Closing DateEffective Time, NewCo 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 shares of Clearwire Capital OUTD Common Stock, whose shares of OUTD Common Stock at were converted into the Effective Time right to receive the Merger Consideration, a letter of transmittal and instructions that (which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the OUTD Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) to the 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 the Exchange Agent in exchange for the Merger Consideration.
(b) At or prior to the Effective Time, Parent will cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of shares of OUTD Common Stock, an amount of cash sufficient to be paid pursuant to Section 2.1, payable upon due surrender of the OUTD Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article II. All cash deposited with the Exchange Agent is referred to in this Agreement as the “Exchange Fund.” The Exchange Agent will, pursuant to irrevocable instructions, deliver the Merger Consideration 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 Merger Consideration payable to holders of shares of OUTD Common Stock entitled to receive such consideration and Parent will promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of shares of OUTD Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments will be the property of, and paid to, Parent.
(c) Each holder of shares of Clearwire Capital OUTD Common Stock will be entitled that have been converted into the right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a Certificatean OUTD Certificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor a check in the amount that such holder has the right to receive in cash, pursuant to Section 2.1 and this Article II. The Merger Consideration will be paid as promptly as practicable (by mail or
(ii) receipt , to the extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of an “agent’s message” OUTD Certificate) after receipt by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the MergerOUTD Certificate and letter of transmittal in accordance with the foregoing, at and in any event no later than three Business Days following the later to occur of (i) the Effective Time, all shares and (ii) the Exchange Agent’s receipt of Clearwire Capital Stock the OUTD Certificate and letter of transmittal in accordance with the foregoing. No interest will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have paid or accrued on any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration or on any unpaid dividends and distributions payable in respect to holders of the Clearwire Capital StockOUTD Certificates.
(cd) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered OUTD Certificate or the transferred Uncertificated Share is registered, it will be a condition to the of such payment that
that (i) either the surrendered OUTD Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
and (ii) the Person requesting the such payment will pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered OUTD Certificate or Uncertificated Share or will establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(de) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital OUTD Common Stock. From and after the Effective Time, the holders of OUTD Certificates representing shares of OUTD Common Stock outstanding immediately prior to the Effective Time 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 Uncertificated Shares are presented to NewCothe Exchange Agent or Parent, they will be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock consideration provided for, and in accordance with the procedures set forth, forth in this Article 2II. Notwithstanding anything to the contrary contained in this Agreement, the 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 OUTD 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 Merger Consideration made available to the Exchange Agent under Section 2.6(a) Fund that remains unclaimed by the holders of shares of Clearwire Capital OUTD Common Stock twelve months one year after the Closing Date Effective Time will be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged his or her shares of Clearwire Capital OUTD Common Stock for the Merger Consideration in accordance with this Section 2.6 before Article II prior to that date time will thereafter look only to NewCo Parent for payment delivery of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those such holder’s shares without any interest thereonof OUTD Common Stock. Regardless Notwithstanding the foregoing, none of Parent, Merger Sub, the preceding sentence, NewCo Surviving Corporation or OUTD will not be liable to any holder of shares of Clearwire Capital OUTD Common Stock for any amounts properly paid Merger Consideration delivered to a public official under pursuant to applicable abandoned property, escheat or similar property Laws. Any amounts Merger Consideration remaining unclaimed by holders of shares of Clearwire Capital OUTD Common Stock six years after the Closing Date (or that earlier date, immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeAuthority will, to the extent permitted by applicable LawLaws, become the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) Parent and the Exchange Agent shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any Person who was a holder of OUTD Common Stock immediately prior to the Effective Time such amounts as Parent or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under the Code or any other provision of federal, state, local or foreign Tax Law. To the extent that amounts are so withheld (and paid to the applicable Governmental Authority) by Parent or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person to whom such consideration would otherwise have been paid.
(h) In the event any OUTD Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed OUTD Certificates, upon the making of an affidavit of that fact by the holder thereof, such Merger Consideration as may be required pursuant to Section 2.1; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed OUTD Certificates to deliver an agreement of indemnification in form reasonably satisfactory to Parent, or, if reasonably required by Parent, a bond in such reasonable sum as Parent may direct, as indemnity against any claim that may be made against Parent or the Exchange Agent in respect of OUTD Certificates alleged to have been lost, stolen or destroyed.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed At or promptly after the Exchange Agent for Effective Time (but in any event within one Business Day), the purpose of exchanging the Merger Consideration for:
Parent shall deposit, or shall cause to be deposited (i) with a paying agent selected by Parent (subject to the consent, not to be unreasonably withheld, conditioned or delayed, of the Company) (the “Paying Agent”), for the benefit of the holders of (A) certificates representing that immediately prior to the Effective Time evidenced shares of Clearwire Capital Company Common Stock (the “Certificates”) or
and (iiB) uncertificated shares of Clearwire Capital Company Common Stock (the “Uncertificated Shares”), for exchange in accordance with this Article III, cash in an amount equal to the aggregate amount payable as Merger Consideration under Section 3.1(a) (the “Fund”). Promptly As soon as reasonably practicable after the Closing DateEffective Time and in any event not later than the third (3rd) Business Day following the Effective Time, NewCo will send, or will cause the Exchange Paying Agent to send, shall mail to each holder of shares of Clearwire Capital Company Common Stock at the Effective Time a letter of transmittal in customary form and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in connection with such exchange. Upon proper surrender of a Certificate for exchange and cancellation or transfer of Uncertificated Shares to the Paying Agent, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other customary documents as may be required pursuant to such instructions, the holder of such Certificate or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration in respect of the shares of Company Common Stock formerly represented by any such Certificate or Uncertificated Shares, and such Certificate so surrendered and any such Uncertificated Shares so transferred shall forthwith be cancelled.
(b) Each holder of shares of Clearwire Capital Company Common Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed letter of transmittal, or
or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of the holder has a right to receive under Section 2.5. The shares of Class A Company Common Stock constituting formerly represented by such holder’s Certificate or Uncertificated Share. Until so surrendered or transferred, as the Merger Consideration will be in uncertificated book-entry formcase may be, unless a physical certificate is requested by the holder each such Certificate or is otherwise required under applicable Law. As a result of the Merger, at Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Paying Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the reasonable satisfaction of the Exchange Paying Agent that the Tax has such Taxes have been paid or is are not payable.
(d) After At and after the Effective Time, there will shall be no further registration transfers on the stock transfer books of transfers of shares of Clearwire Company Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with with, the procedures set forth, forth in this Article 2III.
(e) Any portion of the Merger Consideration made available to the Exchange Paying Agent under Section 2.6(apursuant to (a) that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve (12) months after the Closing Date will Effective Time shall, at the request of Parent, be returned delivered to NewCothe Surviving Corporation, on demand. Any and any such holder who has not exchanged shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before 3.4 prior to that date will time shall thereafter look only to NewCo the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless Notwithstanding anything to the contrary contained herein, none of the preceding sentenceAcquirer Parties, NewCo will not the Company, the Paying Agent or any other Person shall be liable to any holder or former holder of shares of Clearwire Capital Company Common Stock for any amounts amount properly paid delivered to a public official under pursuant to applicable abandoned property, escheat or similar Laws.
(f) The Paying Agent will invest all cash included in the Fund as directed by Parent; provided, however, 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, 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 Uncertificated Shares pursuant to this Article III. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) interest and other income resulting from such investments will become, be paid to the Surviving Corporation pursuant to Section 3.4(e). To the extent permitted by applicable Lawthat there are losses with respect to such investments, or the property Fund diminishes for other reasons below the level required to make prompt payments of NewCothe Merger Consideration as contemplated hereby, free and clear Parent will promptly replace or restore the portion of the Fund lost through investments or other events so as to ensure that the Fund is, at all times, maintained at a level sufficient to make such payments. The Fund will not be used for any claims or interest of any Person previously entitled theretopurpose other than the foregoing.
Appears in 1 contract
Samples: Merger Agreement (PHH Corp)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Bracknell shall appoint an agent reasonably acceptable to Able (the "Exchange Agent") for the purpose of exchanging certificates representing Able Shares, Series C Shares, and Series E Shares. As of the Effective Time, Subco shall deposit with the Exchange Agent for the purpose benefit of exchanging the Merger Consideration for:
(i) holders of Able Shares, Series C Shares and Series E Shares, for exchange in accordance with this Section 2.03, through the Exchange Agent, certificates representing the shares of Clearwire Capital Bracknell Common Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated issuable pursuant to Section 2.02 in exchange for outstanding Able Shares”), Series C Shares and Series E Shares. Promptly after the Closing DateEffective Time, NewCo Subco will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Able Shares, Series C Shares or Series E Shares at the Effective Time a letter of transmittal and instructions that will for use in such exchange (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates certificates representing Able Shares, Series C Shares or transfer of the Uncertificated Series E Shares to the Exchange Agent).
(b) Each holder of shares of Clearwire Capital Stock will be entitled Able Shares, Series C Shares or Series E Shares that have been converted into a right to receivereceive Bracknell Common Stock, on
(i) upon surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Able Shares, Series C Shares or Series E Shares, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated transmittal covering such Able Shares, the aggregate Merger Consideration Series C Shares or Series E Shares, will be entitled to receive in exchange therefor that the number of whole shares of Bracknell Common Stock which such holder has a the right to receive under pursuant to Section 2.52.02, and the certificate or certificates for Able Shares, Series C Shares or Series E Shares so surrendered shall be cancelled. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry formUntil so surrendered, unless a physical each such certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Mergershall, at after the Effective Time, represent for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stockpurposes, except only the right to receive the Merger Consideration payable upon such surrender a certificate representing shares of Bracknell Common Stock and cash in respect lieu of the Clearwire Capital Stockany fractional shares of Bracknell Common Stock as contemplated by this Section 2.03 and Section 2.05.
(c) If any portion shares of the Merger Consideration is Bracknell Common Stock are to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment issued to a Person other than the registered holder of Able Shares, Series C Shares or Series E Shares represented by the Certificate certificate or Uncertificated Share certificates surrendered in exchange therefor, it shall be a condition to such issuance 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 issuance shall pay to the Exchange Agent any transfer Tax or other Taxes required as a result of such issuance to a Person other than the registered holder of such Able Shares, Series C Shares or Series E Shares or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital StockAble Shares, Series C Shares or Series E Shares. If, after the Effective Time, Certificates certificates representing Able Shares, Series C Shares or Uncertificated Series E Shares are presented to NewCothe Surviving Corporation, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock as provided for, and in accordance with the procedures set forth, in this Article 2II.
(e) Any portion shares of the Merger Consideration Bracknell Common Stock made available to the Exchange Agent under pursuant to Section 2.6(a2.03(a) that remains remain unclaimed by the holders of shares of Clearwire Capital Stock twelve Able Shares, Series C Shares or Series E Shares six months after the Closing Date will Effective Time shall be returned to NewCoBracknell, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration his Able Shares, Series C Shares or Series E Shares in accordance with this Section 2.6 before prior to that date will time shall thereafter look only to NewCo for payment of Bracknell to exchange such Able Shares, Series C Shares or Series E Shares. Notwithstanding the Merger Considerationforegoing, the Surviving Corporation and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will Bracknell shall not be liable to any holder of Able Shares, Series C Shares or Series E Shares for any amount paid, or any shares of Clearwire Capital Bracknell Common Stock for any amounts properly paid delivered, to a public official under pursuant to applicable abandoned property, escheat or similar property Laws. Any shares of Bracknell Common Stock or other amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six Able Shares, Series C Shares or Series E Shares two years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority) will becomeshall, to the extent permitted by applicable Law, become the property of NewCo, Bracknell free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions on shares of Bracknell Common Stock shall be paid to the holder of any unsurrendered certificates representing Able Shares, Series C Shares or Series E Shares until such certificates are surrendered as provided in this Section. Upon such surrender, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of Bracknell Common Stock into which such Able Shares, Series C Shares or Series E Shares were converted are registered, all dividends and other distributions paid in respect of such Bracknell Common Stock on a date subsequent to, and in respect of a record date after, the Effective Time.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Sirius shall appoint an agent (the “Exchange Agent Agent”) reasonably acceptable to XM for the purpose of exchanging certificates which immediately prior to the Merger Consideration for:
(i) certificates representing Effective Time evidenced shares of Clearwire Capital XM Merger Stock (the “Certificates”) or
for the applicable Merger Consideration pursuant to an exchange agent agreement in form and substance reasonably satisfactory to XM. At or as promptly as practicable (iiand, in any event, within two (2) uncertificated business days) after the Effective Time, Sirius shall deposit, or shall cause to be deposited, with the Exchange Agent, the Merger Consideration to be exchanged or paid in accordance with this Article II, and Sirius 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 fractional shares pursuant to Section 2.3 and any dividends or distributions to which holders of shares of Clearwire Capital XM Merger Stock (the “Uncertificated Shares”may be entitled pursuant to Section 2.2(c). Promptly after the Closing Date, NewCo will The Surviving Corporation shall send, or will shall cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital XM Merger Stock at immediately prior to the Effective Time whose shares were converted into the right to receive the applicable Merger Consideration pursuant to Section 2.1, promptly after the Effective Time, (i) a letter of transmittal for use in such exchange (which shall be in form and instructions that will substance reasonably satisfactory to Sirius and XM and shall specify that the delivery will shall be effected, and risk of loss and title will in respect of the Certificates shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) and (ii) instructions to effect the surrender of the Certificates in exchange for 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 Clearwire Capital XM Merger Stock will be entitled that have been converted into a right to receivereceive the applicable Merger Consideration, on
(i) 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), upon surrender to the Exchange Agent of a CertificateCertificate or Certificates, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” by the Exchange Agent (or transmittal covering such shares and such other evidence, if any, of transfer documents as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Sharesrequire, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will shall be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right entitled to receive the applicable Merger Consideration payable in respect of such shares of XM Merger Stock. The holder of such Certificate, upon its delivery thereof to the Clearwire Capital StockExchange 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) If Whenever a dividend or other distribution is declared or made after the date hereof with respect to Sirius 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 Sirius Common Stock and Sirius Mirror Preferred Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the Effective Time with respect to Sirius 3 Table of Contents Common Stock with a record date after the Effective Time shall be paid to the holder of any portion unsurrendered Certificate with respect to the Sirius Common Stock or Sirius Mirror Preferred 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 whole Sirius Common Stock and Sirius Mirror Preferred Stock issued in exchange therefor, without interest, at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole Sirius Common Stock and Sirius Mirror Preferred Stock.
(d) In the event that a transfer of ownership of shares of XM Merger Stock is not registered in the stock transfer books or ledger of XM, or if any certificate for the applicable Merger Consideration is to be paid to issued in a Person name other than that in which the Person Certificate surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share exchange therefor is registered, it will shall be a condition to the payment that
(i) either issuance thereof that the Certificate or Certificates so surrendered Certificate will shall be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) and that the Person requesting the payment will pay such exchange shall have paid to the Exchange Agent any transfer or other Taxes taxes required as a result of the payment to issuance of a Person certificate for Sirius Common Stock or Sirius Mirror Preferred Stock in any name other than that of the registered holder of the Certificate or Uncertificated Share such shares of XM Merger Stock, or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable. 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 government or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed No later than five business days prior to the Closing Date, HoldCo shall appoint a bank or trust company reasonably acceptable to the Company to act as agent (the “Exchange Agent Agent”) for the purpose of exchanging the Merger Consideration for:
(i) for the Common Stock Consideration (A) certificates representing shares of Clearwire Capital Company Common Stock (the “Common Certificates”) or (B) uncertificated shares of Company Common Stock (the “Uncertificated Common Shares”), and (ii) for the Preferred Stock Consideration (A) certificates representing shares of Company Series C Preferred Stock (the “Preferred Certificates” and together with the Common Certificates, the “Certificates”) or
or (iiB) uncertificated shares of Clearwire Capital Company Series C Preferred Stock (the “Uncertificated Preferred” and together with the Uncertificated Common Shares, the “Uncertificated Shares”). At or prior to the Closing, the Parent Entities shall have deposited, or shall have caused to be deposited with or provided to, (1) the Depositary Bank, or a nominee for the Depositary Bank, a number of HoldCo Shares equal to the aggregate number of HoldCo ADSs to be issued as Common Stock Consideration and (2) the Exchange Agent, in escrow (x) for the benefit of the holders of Company Common Stock, irrevocable written instruction to cause the aggregate number of HoldCo ADSs to be issued as Common Stock Consideration, (y) for the benefit of the holders of Company Common Stock, receipts (or uncertificated book-entries, as applicable) representing such aggregate number of HoldCo ADSs, and (z) for the benefit of the holders of the Series C Preferred Stock, an amount in cash in U.S. dollars sufficient to pay the Preferred Stock Consideration. In addition, the Parent Entities shall deposit, or cause to be deposited, with the Exchange Agent, as necessary from time to time at or after the Closing any dividends or distributions payable pursuant to Section 2.04(f). All cash and HoldCo ADS, whether evidenced by receipts or book-entries, together with any dividends or distributions and cash in lieu of fractional shares in accordance with Section 2.05 deposited with or provided to the Exchange Agent by or on behalf of HoldCo, shall be referred to in this Agreement as the “Exchange Fund”. If for any reason the Exchange Fund is inadequate to pay the amounts to which holders of Company Stock shall be entitled under Section 2.03, the Parent Entities shall promptly deposit, or cause to be deposited promptly, additional cash with the Exchange Agent sufficient to make all cash payments of the aggregate Preferred Stock Consideration and any cash payable in lieu of fractional HoldCo ADSs and additional HoldCo ADSs with the Exchange Agent (and additional HoldCo Shares with the Depositary Bank) sufficient to make all payments of the aggregate Common Stock Consideration, and Parent, HoldCo and the Surviving Corporation shall in any event be liable for payment thereof. Promptly after the Closing DateClosing, NewCo (I) the Parent Entities will instruct the Exchange Agent to pay the Merger Consideration out of the Exchange Fund in accordance with the terms of this Agreement (and, for the avoidance of doubt, the Exchange Funds shall not be used for any purpose other than the delivery of the Merger Consideration) and (II) HoldCo shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Company Stock at as of immediately prior to the First Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. Subject to Section 2.04(e), the Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to ADSs held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect thereto for the account of Persons entitled thereto. No later than ten (10) Business Days prior to the Closing Date, the Parent Entities shall enter into an agreement with the Exchange Agent, in form and substance reasonably satisfactory to the Company, to effect the applicable terms of this Agreement (the “Exchange Agent Agreement”).
(b) At the First Effective Time, the stock transfer records of Merger Sub I shall record the issuance of all Merger Sub I Shares issuable in the First Merger as of the First Effective Time such that immediately following the First Effective Time such Merger Sub I Shares shall be deemed issued and outstanding Merger Sub I Shares. From and after the First Effective Time stock certificates previously evidencing ownership of shares of Company Common Stock converted in the First Merger into Merger Sub I Shares shall no longer evidence ownership of shares of Company Common Stock but shall evidence only ownership of the Merger Sub I Shares into which the Merger Sub I Shares previously represented by such stock certificates were converted in the First Merger. Each holder of shares of Clearwire Capital Company Common Stock will that have been converted into the right to receive Merger Sub I Shares in connection with the First Merger, and which Merger Sub I Shares are in turn converted into the right to receive the Merger Consideration in connection with the Second Merger, shall be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Common Stock Consideration that or Preferred Stock Consideration, as applicable, in respect of the holder has a right Company Stock represented by such Certificate or Uncertificated Share. For the avoidance of doubt, pursuant to the foregoing provisions, each Person entitled to receive under Section 2.5Merger Sub I Shares in the First Merger shall instead receive an equal number of HoldCo ADSs (or at such Person’s option, HoldCo Shares) to be issued following the Second Merger as the Common Stock Consideration. The shares HoldCo ADSs constituting part of Class A such Common Stock constituting the Merger Consideration will Consideration, at HoldCo’s option, shall be in uncertificated book-entry form, unless a physical certificate ADR is requested by the holder Person or is otherwise required under by applicable Law, in which case the Parent Entities shall cause the Exchange Agent to send such physical ADR to such Person promptly in accordance with the Exchange Agent Agreement. As a result of Until so surrendered or transferred, as the Mergercase may be, at each such Certificate or Uncertificated Share shall represent for all purposes after the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except Closing only the right to receive the such Merger Consideration payable and, in respect the case of Common Certificates and Uncertificated Common Shares, the Clearwire Capital Stockright to receive any dividends or other distributions pursuant to Section 2.04(f), in each case, as contemplated by this Article 2.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After the First Effective Time, there will shall be no further registration of transfers of shares of Clearwire Capital Company Stock. If, after the Effective TimeClosing, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will shall be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock thereof provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Depositary Bank or Exchange Agent under pursuant to Section 2.6(a2.04(a) that remains unclaimed by the holders of shares of Clearwire Capital Company Stock twelve months after the Closing Date will shall be returned to NewCoremitted to, on or as designated by, HoldCo upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Company Stock for the Merger Consideration in accordance with this Section 2.6 before 2.04 prior to that date will time shall thereafter look only to NewCo HoldCo for payment of the Merger Consideration, and any dividends and or other distributions with respect thereto pursuant to the Merger ConsiderationSection 2.04(f), in respect of those such shares without any interest thereon. Regardless Notwithstanding the foregoing, none of the preceding sentence, NewCo will not Parent Entities or the Surviving Corporation shall be liable to any holder of shares of Clearwire Capital Company Stock for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Company Stock six years after the Closing Date (or that earlier date, immediately before the as of such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will Authority shall become, to the extent permitted by applicable Applicable Law, the property of NewCoHoldCo, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to HoldCo Shares or HoldCo ADSs, and no cash payment in lieu of fractional shares or HoldCo ADSs except as provided in Section 2.05, 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 Section 2.04. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the HoldCo Shares or HoldCo ADSs have been registered at the time of such surrender or transfer, (i) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.05, (ii) at the time of such surrender or transfer, the dividends or other distributions with a record date after the Closing theretofore payable with respect to such HoldCo Shares or HoldCo ADSs and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Closing and prior to such surrender or transfer and with a payment date subsequent to such surrender or transfer payable with respect to such HoldCo Shares or HoldCo ADSs.
Appears in 1 contract
Samples: Merger Agreement (Avon Products Inc)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Seagull shall appoint an agent reasonably acceptable to OEI (the "Exchange Agent") for the purpose of exchanging Common Stock Certificates formerly representing OEI Common Stock. At or prior to the Effective Time, Seagull shall deposit with the Exchange Agent for the purpose benefit of exchanging the Merger Consideration for:
holders of OEI Common Stock, for exchange in accordance with this Section 3.2 through the Exchange Agent, (i) as of the Effective Time, certificates representing shares of Clearwire Capital the Common Stock (the “Certificates”Merger Consideration to be issued pursuant to Section 3.1(a) or
and (ii) uncertificated from time to time as necessary, cash to be paid in lieu of fractional shares of Clearwire Capital pursuant to Section 3.4 (such certificates for the Common Stock (Merger Consideration and such cash being hereinafter referred to as the “Uncertificated Shares”"Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Common Stock Merger Consideration and cash in exchange for surrendered Common Stock Certificates formerly representing OEI Common Stock pursuant to Section 3.1 out of the Exchange Fund. Except as contemplated by Section 3.2(f), the Exchange Fund shall not be used for any other purpose.
(b) Promptly after the Closing DateEffective Time, NewCo but in any event not later than five business days thereafter, Seagull will send, or will cause the Exchange Agent to send, to each holder of shares a Common Stock Certificate or Certificates that immediately prior to the Effective Time represented outstanding OEI Common Stock a letter of Clearwire Capital transmittal and instructions for use in effecting the exchange of such Common Stock at Certificates for certificates representing the Common Stock Merger Consideration and, if applicable, cash in lieu of fractional shares. Provision also shall be made for holders of Common Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions that will specify that and to deliver in person immediately after the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) surrender to the Exchange Agent of a Certificate, together with a properly completed Effective Time such letter of transmittal, or
(ii) receipt of an “agent’s message” by transmittal and Common Stock Certificates in exchange for the Exchange Agent (or other evidenceCommon Stock Merger Consideration and, if anyapplicable, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stockcash.
(c) After the Effective Time, Common Stock Certificates shall represent the right, upon surrender thereof to the Exchange Agent, together with a duly executed and properly completed letter of transmittal relating thereto, to receive in exchange therefor that number of whole shares of Seagull Common Stock, and, if applicable, cash that such holder has the right to receive pursuant to Sections 3.1 and 3.4 after giving effect to any required tax withholding, and the Common Stock Certificate or Certificates so surrendered shall be canceled. No interest will be paid or will accrue on any cash amount payable upon the surrender of any such Common Stock Certificates. Until so surrendered, each such Common Stock Certificate shall, after the Effective Time, represent for all purposes only the right to receive, upon such surrender, Seagull Common Stock and, if applicable, cash as contemplated by this Article III.
(d) If any portion shares of the Merger Consideration is Seagull Common Stock are to be issued and/or cash to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Common Stock Certificate or Uncertificated Share Certificates surrendered in exchange therefor, it shall be a condition to such issuance that the Common Stock Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such issuance shall pay to the Exchange Agent any transfer or other taxes required as a result of such issuance to a Person other than the registered holder or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payableapplicable. 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 or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Pursuant to Section 3.3 of the Separation and Distribution Agreement, the Exchange Agent shall hold, for the purpose account of exchanging the relevant SpinCo stockholders, book-entry shares representing all of the outstanding shares of SpinCo Common Stock distributed or exchanged, as applicable, in the Distribution.
(b) Prior to the Effective Time, Parent shall designate a nationally recognized commercial bank or trust company reasonably acceptable to the Company to act as agent (the “Exchange Agent”) for the benefit of the holders of shares of SpinCo Common Stock whose shares of SpinCo Common Stock are exchanged in accordance with this Section 3.2(b). At or substantially concurrently with the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the holders of shares of SpinCo Common Stock, for exchange in accordance with this Section 3.2(b) promptly after the Effective Time, book-entry shares representing the Merger Consideration for:
issuable to holders of shares of SpinCo Common Stock as of immediately prior to the Effective Time pursuant to Section 3.1(a)(i) (such book-entry shares of Parent Common Stock, together with any cash received by the Exchange Agent in respect of dividends or distributions with respect thereto pursuant to Section 3.2(d) and other amounts payable in accordance with Section 3.2(e), the “Exchange Fund”). The Exchange Agent shall, following the Effective Time, pursuant to irrevocable instructions from Parent, deliver the Merger Consideration out of the Exchange Fund. The cash portion, if any, of the Exchange Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) certificates representing no such investment of or losses thereon shall relieve Parent from making or causing to be made the payments required by this Section 3.2 or elsewhere in this Agreement, or affect the amount payable in respect of the shares of Clearwire Capital SpinCo Common Stock outstanding as of immediately prior to the Effective Time, (ii) to the extent the Exchange Fund is insufficient at any time to make such payments, Parent shall promptly provide additional funds to the Exchange Agent in the amount of any such deficiency and (iii) no such investment shall have maturities that would reasonably be expected to prevent or delay the payments to be made pursuant to this Section 3.2. Any interest or other income from such investments shall be paid to and become the property of Parent. The Exchange Fund shall not be used for any purpose other than as specified in this Section 3.2(b). 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 satisfactory to the Company, to effect the applicable terms of this Agreement (the “CertificatesAgent Agreement”) or).
(iic) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly As promptly as practicable after the Closing DateEffective Time, NewCo will send, or will Parent shall cause the Exchange Agent to send, deliver to each holder of shares of Clearwire Capital SpinCo Common Stock at as of immediately prior to the Effective Time a letter Time, from the Exchange Fund, the shares of transmittal and instructions that will specify that the delivery will be effected, and risk Parent Common Stock into which such shares of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares SpinCo Common Stock have been converted pursuant to the Exchange Agent.
Merger, which shares shall, for the sake of clarity, be delivered to the same Persons who received shares of SpinCo Common Stock in the Distribution (b) in respect of such shares). Each holder of shares of Clearwire Capital SpinCo Common Stock will as of immediately prior to the Effective Time shall be entitled to receive, on
(i) surrender to the Exchange Agent receive in respect of a Certificate, together with a properly completed letter such shares of transmittal, or
(ii) receipt of an “agent’s message” SpinCo Common Stock held by the Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of such Person a book-entry transfer authorization representing the number of Uncertificated Shares, the aggregate Merger Consideration whole shares of Parent Common Stock that the such holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except the right to receive the Merger Consideration payable pursuant to this Section 3.2(c) (and cash in respect lieu of the Clearwire Capital Stock.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of fractional shares of Clearwire Capital Parent Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under as contemplated by Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration3.2(e), and any dividends or distributions and distributions other amounts pursuant to Section 3.2(d)). The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to Parent Common Stock held by it from time to time hereunder or under the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretoAgent Agreement.
Appears in 1 contract
Samples: Merger Agreement (3m Co)
Surrender and Payment. (a) Clearwire has appointed At or promptly after the Exchange Agent for Effective Time (but in any event within one Business Day), the purpose of exchanging the Merger Consideration for:
Parent shall deposit, or shall cause to be deposited (i) with a paying agent selected by Parent (subject to the consent, not to be unreasonably withheld, conditioned or delayed, of the Company) (the “Paying Agent”), for the benefit of the holders of (A) certificates representing that immediately prior to the Effective Time evidenced shares of Clearwire Capital Company Common Stock (the “Certificates”) or
and (iiB) uncertificated shares of Clearwire Capital Company Common Stock (the “Uncertificated Shares”), for exchange in accordance with this Article III, cash in an amount equal to the aggregate amount payable as Merger Consideration under Section 3.1(a) (the “Fund”). Promptly As soon as reasonably practicable after the Closing DateEffective Time and in any event not later than the third (3rd) Business Day following the Effective Time, NewCo will send, or will cause the Exchange Paying Agent to send, shall mail to each holder of shares of Clearwire Capital Company Common Stock at the Effective Time a letter of transmittal in customary form and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in connection with such exchange. Upon proper surrender of a Certificate for exchange and cancellation or transfer of Uncertificated Shares to the Paying Agent, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other customary documents as may be required pursuant to such instructions, the holder of such Certificate or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration in respect of the shares of Company Common Stock formerly represented by any such Certificate or Uncertificated Shares, and such Certificate so surrendered and any such Uncertificated Shares so transferred shall forthwith be cancelled.
(b) Each holder of shares of Clearwire Capital Company Common Stock will that have been converted into the right to receive the Merger Consideration shall be entitled to receive, on
upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed letter of transmittal, or
or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that in respect of the holder has a right to receive under Section 2.5. The shares of Class A Company Common Stock constituting formerly represented by such holder’s Certificate or Uncertificated Share. Until so surrendered or transferred, as the Merger Consideration will be in uncertificated book-entry formcase may be, unless a physical certificate is requested by the holder each such Certificate or is otherwise required under applicable Law. As a result of the Merger, at Uncertificated Share shall represent after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the such Merger Consideration payable in respect of the Clearwire Capital StockConsideration.
(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 or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Paying Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the reasonable satisfaction of the Exchange Paying Agent that the Tax has such Taxes have been paid or is are not payable.
(d) After At and after the Effective Time, there will shall be no further registration transfers on the stock transfer books of transfers of shares of Clearwire Company Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation, they will shall be canceled cancelled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with with, the procedures set forth, forth in this Article 2Article III.
(e) Any portion of the Merger Consideration made available to the Exchange Paying Agent under Section 2.6(apursuant to (a) that remains unclaimed by the holders of shares of Clearwire Capital Company Common Stock twelve (12) months after the Closing Date will Effective Time shall, at the request of Parent, be returned delivered to NewCothe Surviving Corporation, on demand. Any and any such holder who has not exchanged shares of Clearwire Capital Company Common Stock for the Merger Consideration in accordance with this Section 2.6 before Section 3.4 prior to that date will time shall thereafter look only to NewCo the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless Notwithstanding anything to the contrary contained herein, none of the preceding sentenceAcquirer Parties, NewCo will not the Company, the Paying Agent or any other Person shall be liable to any holder or former holder of shares of Clearwire Capital Company Common Stock for any amounts amount properly paid delivered to a public official under pursuant to applicable abandoned property, escheat or similar Laws.
(f) The Paying Agent will invest all cash included in the Fund as directed by Parent; provided, however, 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 Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, 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 Uncertificated Shares pursuant to this Article III. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) interest and other income resulting from such investments will become, be paid to the Surviving Corporation pursuant to Section 3.4(e). To the extent permitted by applicable Lawthat there are losses with respect to such investments, or the property Fund diminishes for other reasons below the level required to make prompt payments of NewCothe Merger Consideration as contemplated hereby, free and clear Parent will promptly replace or restore the portion of the Fund lost through investments or other events so as to ensure that the Fund is, at all times, maintained at a level sufficient to make such payments. The Fund will not be used for any claims or interest of any Person previously entitled theretopurpose other than the foregoing.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed Prior to the Mailing Date, CME shall appoint an exchange agent reasonably acceptable to GFI (the “Exchange Agent Agent”) for the purpose of exchanging Certificates for the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”)Consideration. Promptly As promptly as reasonably practicable after the Closing DateEffective Time, NewCo but in no event more than five Business Days following the Effective Time, CME will send, or will cause the Exchange Agent to send, to each holder of record of shares of Clearwire Capital GFI Common Stock at as of the Effective Time Time, whose shares of GFI Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 1.7 (Effect on Capital Stock) and Section 1.10 (Election Procedures), a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates (or transfer effective affidavits of loss in lieu thereof) to the Exchange Agent) in such form as GFI and CME may reasonably agree, 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 or prior to the Effective Time, CME shall cause to be deposited with the Exchange Agent, for the benefit of the Uncertificated Shares holders of shares of GFI Common Stock, shares of CME 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 1.7 (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 this Article II. Following the Effective Time, CME 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) (Dividends and Distributions). All cash and book-entry shares representing CME Class A Common Stock deposited with the Exchange Agent shall be referred to in this Agreement as the “Exchange Fund.” The Exchange Agent shall deliver the Merger Consideration contemplated to be issued pursuant to Section 1.7 (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 in short-term direct obligations of the U.S. or short-term obligations for which the full faith and credit of the U.S. is pledged to provide for payment of all principal and interest (or funds that invest in such obligations); provided that no gain or loss thereon shall affect the amounts payable to the holders of GFI Common Stock pursuant to this Agreement. If for any reason (including losses) the cash in the Exchange Fund shall be insufficient to satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, CME shall promptly deposit cash into the Exchange 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 the property of, and paid to, CME. CME shall be responsible for all fees and expenses of the Exchange Agent.
(b) Each holder of shares of Clearwire Capital GFI Common Stock will be entitled that have been converted into the right to receivereceive the Merger Consideration, on
(i) upon surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent (or other evidenceAgent, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right will be entitled to receive under Section 2.5. The in exchange therefor (i) the number of shares of CME Class A Common Stock constituting the Merger Consideration will (which shall be in uncertificated non-certificated book-entry form, form unless a physical certificate is requested by requested) representing, in the holder or is otherwise required under applicable Law. As a result aggregate, the whole number of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital CME Class A Common Stock, except if any, that such holder has the right to receive the Merger Consideration payable in respect of the Clearwire Capital Stock.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
and/or (ii) a check in the Person requesting amount, if any, that such holder has the payment will pay right to receive, including cash payable pursuant to Section 1.7(b), 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) (Dividends and Distributions) (less any required Tax withholding), in each case pursuant to Section 1.7 (Effect on Capital Stock), Section 1.10 (Election Procedures) and this Article II. The Merger Consideration shall be paid as promptly as practicable after receipt by the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to and letter of transmittal in accordance with the satisfaction of the Exchange Agent that the Tax has been foregoing. No interest shall be paid or is not payable.
(d) After the Effective Timeaccrued on any Merger Consideration, there will be no further registration cash in lieu of transfers fractional shares or unpaid dividends and distributions payable to holders of shares of Clearwire Capital StockCertificates. IfUntil so surrendered, each such Certificate shall, after the Effective Time, Certificates or Uncertificated Shares are presented represent for all purposes only the right to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the receive such Merger Consideration, cash in lieu of any fractional shares and any unpaid dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretodistributions.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed GE shall appoint the Exchange Agent for the purpose of exchanging the Merger Consideration for:
(i) certificates representing shares of Clearwire Capital BHI Common Stock (the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital BHI Common Stock (the “Uncertificated Shares”). Promptly after the Closing Date, NewCo Newco will send, or will cause the Exchange Agent to send, to each holder of shares of Clearwire Capital BHI Common Stock at the Effective Time a letter of transmittal and instructions that will specify that the delivery will be effected, and risk of loss and title will pass, only on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital BHI Common Stock will be entitled to receive, on
(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 Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.52.02. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital BHI Common Stock will cease to be outstanding and each holder of Clearwire Capital BHI Common Stock will cease to have any rights with respect to the Clearwire Capital BHI Common Stock, except the right to receive the Merger Consideration payable in respect of the Clearwire Capital BHI Common Stock.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the payment that:
(i) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payable.
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital BHI Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Entity, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital BHI Common Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a2.03(a) that remains unclaimed by the holders of shares of Clearwire Capital BHI Common Stock twelve (12) months after the Closing Date will be returned to NewCothe Surviving Entity, on demand. Any holder who has not exchanged shares of Clearwire Capital BHI Common Stock for the Merger Consideration in accordance with this Section 2.6 2.03 before that date will look only to NewCo the Surviving Entity for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo the Surviving Entity will not be liable to any holder of shares of Clearwire Capital BHI Common Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital BHI Common Stock six (6) years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) will become, to the extent permitted by applicable Law, the property of NewCothe Surviving Entity, free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (General Electric Co)
Surrender and Payment. (a) Clearwire has appointed At least 10 Business Days prior to the Closing Date, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent Agent”) and enter into an exchange agent agreement, reasonably acceptable to the Company, with such agent for the purpose of exchanging for the Merger Consideration for:
as promptly as practicable after the Effective Time (i) certificates representing shares of Clearwire Capital Stock Company Common Shares (the “Certificates”) or
or (ii) uncertificated shares of Clearwire Capital Stock Company Common Shares (the “Uncertificated Shares”). Promptly Prior to the Effective Time, Parent shall make available to the Exchange Agent the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. As promptly as practicable after the Closing DateEffective Time (but no later than two Business Days thereafter), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Company Common Shares at the Effective Time a letter of transmittal and instructions that (which will be in a form reasonably acceptable to the Company and finalized prior to the Effective Time and which will specify that the delivery will be effected, and risk of loss and title will pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Stock Company Common Shares that have been converted into the right to receive the Merger Consideration will be entitled to receive, on
upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or
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 a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has payable for each Company Common Share represented by a right to receive under Section 2.5Certificate or for each Uncertificated Share (less any applicable withholding). The shares Parent Common Shares constituting part of Class A Common Stock constituting the such Merger Consideration will Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by the a holder of Company Common Shares or is otherwise required under applicable Applicable Law. As a result of Until so surrendered or transferred, as the Mergercase may be, at each such Certificate or Uncertificated Share will represent from and after the Effective Time, Time for all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except purposes only the right to receive the Merger Consideration Consideration. No interest will be paid or will accrue on the cash payable in respect upon surrender of the Clearwire Capital Stockany such Company Common Shares.
(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 or the transferred Uncertificated Share is registered, it will be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(d) After At the Effective Time, the share transfer books of the Company will be closed, and there will be no further registration of transfers of shares of Clearwire Capital StockCompany Common Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCothe Surviving Corporation or the Exchange Agent, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(apursuant to Section 2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve Company Common Shares 12 months after the Closing Date Effective Time will be returned to NewCoParent, on upon demand. Any , and any such holder who has not exchanged shares of Clearwire Capital Stock any Company Common Share for the Merger Consideration in accordance with this Section 2.6 before Section 2.03 prior to that date time will thereafter look only to NewCo Parent for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, Consideration in respect of those shares such Company Common Share without any interest thereonthereon (subject to abandoned property escheat or similar Applicable Law). Regardless Notwithstanding the foregoing, none of Parent, the preceding sentence, NewCo Surviving Corporation or the Exchange Agent will not be liable to any holder of shares of Clearwire Capital Stock Company Common Shares for any amounts properly paid Merger Consideration delivered to a public official under Governmental Authority pursuant to any applicable abandoned property, escheat or similar LawsApplicable Law. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts If any Certificate shall not have been surrendered prior to such date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Authority) will become, then any such Merger Consideration will, to the extent permitted by applicable Applicable Law, become the property of NewCoParent, free and clear of any all claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Common Shares 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 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 registered, at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled 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 surrender with respect to such securities.
Appears in 1 contract
Surrender and Payment. (a) Clearwire has appointed At the Effective Time, all Shares and all Options outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.10, each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of an Option shall cease to have any rights as a shareholder of Holdco or a holder of Options.
(b) Prior to the Effective Time, each of Parent and Shareholder Representative shall appoint the Exchange Agent to act as the exchange agent in the Merger. The Exchange Agent will be paid fifty percent (50%) by Parent and fifty percent by Holdco (with Holdco’s portion being treated as a Transaction Expense for the purpose purposes of exchanging the Merger Consideration for:this Agreement).
(ic) certificates representing shares of Clearwire Capital Stock (As promptly as practicable following the “Certificates”) or
(ii) uncertificated shares of Clearwire Capital Stock (the “Uncertificated Shares”). Promptly after the Closing DateEffective Time, NewCo will send, or will Parent shall cause the Exchange Agent to send, mail to each holder of shares of Clearwire Capital Stock at the Effective Time Shareholder a letter of transmittal in a form reasonably acceptable to Parent and Holdco (a “Shareholder Letter of Transmittal”) and instructions that will specify that for use in effecting the delivery will be effected, and risk surrender of loss and title will pass, only on proper delivery Certificates in exchange for the applicable portion of the Certificates or transfer of the Uncertificated Shares Merger Consideration pursuant to the Exchange Agent.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(i) surrender to the Exchange Agent Section 2.08(b). Promptly upon receipt of a Certificate, together with a properly Shareholder Letter of Transmittal duly completed letter of transmittaland validly executed in accordance with the instructions thereto, or
(ii) receipt of an “agent’s message” by the Exchange Agent (and any other customary documents that Parent or other evidence, if any, of transfer as the Exchange Agent may reasonably request) require in connection therewith, Parent shall cause the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that Exchange Agent to pay to the holder has of such Certificate a right cash amount as provided in Section 2.08(b) with respect to receive under Section 2.5such Certificate so surrendered and the Certificate shall forthwith be cancelled. The No interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Class A Holdco Common Stock constituting the Merger Consideration will (other than Dissenting Shares) shall be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at deemed from and after the Effective Time, for all shares of Clearwire Capital Stock will cease purposes, to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except evidence the right to receive the portion of the Merger Consideration as provided in Section 2.08(b). If after the Effective Time, any Certificate is presented to the Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.11.
(d) As promptly as practicable following the Effective Time, Parent shall cause the Exchange Agent to mail to each Optionholder that is an employee of an FNC Entity letters of transmittal in a form reasonably acceptable to Parent and Holdco (an “Employee Optionholder Letter of Transmittal”) and instructions for completing, executing and returning such Employee Optionholder Letter of Transmittal. Promptly upon receipt of an Employee Optionholder Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Parent may reasonably require in connection therewith, Parent shall cause FNC’s current payroll provider, on behalf of Holdco, to pay to such Optionholder the cash amount such Optionholder has the right to receive pursuant to Section 2.09(a), with respect to the In-Money Options in respect of which the Employee Optionholder Letter of Transmittal was delivered. No interest shall be paid or shall accrue on any cash payable upon any In-Money Options.
(e) As promptly as practicable following the Effective Time, with respect to a non-employee Optionholder, Parent shall cause the Exchange Agent to mail to each Optionholder who is not an employee of an FNC Entity a letter of transmittal in a form reasonably acceptable to Parent and Holdco (each, a “Non-Employee Optionholder Letter of Transmittal”) and instructions for completing, executing and returning such Non-Employee Optionholder Letter of Transmittal. Promptly upon receipt of a Non-Employee Optionholder Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Parent or the Exchange Agent may reasonably require in connection therewith, Parent shall cause the Exchange Agent to pay to such Optionholder a cash amount as provided in Section 2.09(a) with respect to the In-Money Options in respect of which the Non-Employee Optionholder Letter of Transmittal was delivered. No interest shall be paid or shall accrue on any cash payable upon any In-Money Options.
(f) Each Shareholder and Optionholder shall also be entitled to any amounts that may be payable in the future in respect of the Clearwire Capital StockShares formerly represented by such Certificate and the cancelled In-Money Options from the Escrow Funds as provided in this Agreement and the Escrow Agreement and on account of the Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of Shareholders or Optionholders on the Merger Consideration.
(cg) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferredtransfer, and
and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes Tax required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Share or establish to the reasonable satisfaction of the Exchange Agent that the such Tax has been paid or is not payable.
(dh) After Any portion of the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, Merger Consideration that remains unclaimed by the Shareholders and Optionholders 12 months after the Effective TimeTime shall be automatically returned to Parent by the Exchange Agent, and any such Shareholder or Optionholder who has not exchanged Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged delivered Optionholder Transmittal Letters for the Merger Consideration payable in respect accordance with this Section 2.11 prior to that time shall thereafter look only to Parent for payment of the Clearwire Capital Stock provided forMerger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Funds shall be held and distributed to the Persons entitled thereof in accordance with the procedures set forthterms of this Agreement and the Escrow Agreement, in this Article 2at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Shareholders or Optionholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Parent shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws.
(ei) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of Dissenting Shares shall be automatically returned to Parent by the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled theretoExchange Agent.
Appears in 1 contract
Samples: Merger Agreement (Corelogic, Inc.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, Parent shall appoint (subject to the Company’s prior approval not to be unreasonably withheld or delayed) a commercial bank or trust company (the “Exchange Agent Agent”) for the purpose of exchanging Certificates or Uncertificated Company Shares for the Merger Consideration or the consideration described in Section 3.05, as applicable. As of the Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of Company Shares (other than Company Excluded Shares), for exchange in accordance with this Section through the Exchange Agent, securities representing shares of Parent Common Stock issuable and payable pursuant to Section 3.01 or Section 3.05, as applicable, in exchange for outstanding Company Shares (other than Company Excluded Shares) in respect of the Stock Consideration to be paid in the Merger or the consideration described in Section 3.05, as applicable, the cash necessary to pay for the aggregate Cash Consideration to be paid pursuant to this Article 3 and, after the Effective Time, if applicable, any cash and dividends or other distribution with respect to the Parent Common Stock to be issued or to be paid pursuant to this Article 3 (together, the “Exchange Fund”). If a Dissenting Stockholder effectively withdraws its demand for:
, or loses its rights to, appraisal pursuant to Section 262 of the DGCL with respect to any Dissenting Shares, (i) certificates representing such shares of Clearwire Capital Company Common Stock (the “Certificates”) or
shall cease to be Company Excluded Shares and (ii) uncertificated Parent shall make available or cause to be made available to the Exchange Agent (A)(1) additional funds in an amount equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the Cash Consideration and (2) additional shares of Clearwire Capital Parent Common Stock equal to the product of (x) the “Uncertificated Shares”)number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the Stock Consideration or (B) additional shares of Parent Common Stock equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the consideration described in Section 3.05, as applicable. Promptly after the Closing DateEffective Time (and in any event within three business days), NewCo will Parent shall send, or will shall cause the Exchange Agent to send, to each holder of shares of Clearwire Capital Stock Company Shares at the Effective Time a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Company Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Clearwire Capital Stock will be entitled to receive, on
(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 Exchange Agent (or other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration Company Shares that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested by the holder or is otherwise required under applicable Law. As a result of the Merger, at the Effective Time, all shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease to have any rights with respect to the Clearwire Capital Stock, except been converted into the right to receive the Merger Consideration payable or the consideration described in Section 3.05, as applicable, shall be entitled to receive, upon delivery of the Ownership Evidence, the Merger Consideration or the consideration described in Section 3.05, as applicable, in respect of the Clearwire Capital StockCompany Shares represented by a Certificate or Uncertificated Company Share and any cash and dividends or other distributions with respect to the Parent Common Stock to be issued or to be paid pursuant to the last sentence of Section 3.01(a). Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Company Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration or the consideration described in Section 3.05, as applicable.
(c) If any portion of the Merger Consideration or the consideration described in Section 3.05, as applicable, is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Company Share is registered, it will shall be a condition to the such payment that
that (i) either the surrendered such Certificate will shall be properly endorsed or will shall otherwise be in proper form for transfer or the applicable such Uncertificated Company Share will shall be properly transferred, and
transferred and (ii) the Person requesting the such payment will shall pay to the Exchange Agent any transfer or other Taxes taxes required as a result of the such payment to a Person other than the registered holder of the such Certificate or Uncertificated Company Share or establish to the satisfaction of the Exchange Agent that the Tax such tax has been paid or is not payable.
(d) After The stock transfer books of the Company shall be closed immediately upon the Effective Time, Time and there will shall be no further registration of transfers of shares Company Shares thereafter on the records of Clearwire Capital Stockthe Company. If, after the Effective Time, Certificates or Uncertificated Company Shares are presented to NewCoParent, the Surviving Corporation or the Exchange Agent for any reason, they will shall be canceled and exchanged for the Merger Consideration payable or the consideration described in respect of Section 3.05, as applicable, and cash, dividends or other distributions to the Clearwire Capital Stock extent provided for, and in accordance with the procedures set forth, in this Article 23.
(e) Any portion of the Merger Consideration Exchange Fund made available to the Exchange Agent under pursuant to Section 2.6(a3.02(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve Company Shares six months after the Closing Date will Effective Time shall be returned delivered to NewCoParent or otherwise on the instruction of Parent, on demand. Any and any such holder who has not exchanged shares of Clearwire Capital Stock Company Shares for the Merger Consideration in accordance with this Section 2.6 before 3.01 or the consideration described in Section 3.05, as applicable, prior to that date will time shall thereafter look only to NewCo Parent for payment of the Merger ConsiderationConsideration or the consideration described in Section 3.05, as applicable, and any cash, dividends and distributions with respect to the Merger Considerationthereto, in respect of those such shares without any interest thereon. Regardless of Notwithstanding the preceding sentenceforegoing, NewCo will Parent shall not be liable to any holder of shares of Clearwire Capital Stock Company Shares for any amounts properly paid to a public official under pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six Company Shares two years after the Closing Date Effective Time (or that such earlier date, date immediately before the prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) will shall become, to the extent permitted by applicable Applicable Law, the property of NewCo, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Whenever a dividend or other distribution is declared by Parent in respect of Parent Common Stock, the record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all shares of Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions in respect of such Parent Common Stock shall be paid to any holder of any unsurrendered or undelivered Ownership Evidence until such Ownership Evidence is provided to the Exchange Agent or Parent in accordance with this Article 3. Subject to the effect of Applicable Laws, following surrender or delivery, as applicable, of any such Ownership Evidence to the Exchange Agent or Parent in accordance with this Article 3, there shall be issued and/or paid to the holder of the Ownership Evidence representing whole shares of Parent Common Stock issued in exchange therefor, without interest, (A) at the time of such surrender or delivery, as the case may be, the dividends or other distributions with a record date at or after the Effective Time and a payment date on or prior to the date of issuance of such whole shares of Parent Common Stock and not previously paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to such whole shares of Parent Common Stock with a record date at or after the Effective Time on the Closing Date but with a payment date subsequent to surrender or delivery and not previously paid.
(g) Notwithstanding any other provision of this Agreement, no fractional shares of Parent Common Stock will be issued in respect of any Company Shares and any holder of Company Shares entitled to receive a fractional share of Parent Common Stock but for this Section 3.02(g) shall be entitled to receive in lieu thereof an amount in cash (without interest) determined by multiplying such fraction (rounded to the nearest one-hundredth of a share) by the Closing Parent Common Stock Price (the aggregate amount of cash required to be paid in lieu of fractional shares of Parent Common Stock, the “Aggregate Fractional Share Consideration”).
(h) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article 3 such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of any Applicable Law, including federal, state, local or foreign Tax law. If the Exchange Agent, Parent or the Surviving Corporation, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which the Exchange Agent, Parent or the Surviving Corporation, as the case may be, made such deduction and withholding.
(i) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond in the form customarily required by Parent as indemnity against any claim that may be made against it with respect to such Certificate, and the submission of such other documentation as Parent customarily requires for the replacement of lost, stolen or destroyed certificates, the Exchange Agent (or Parent pursuant to Section 3.02(e)) will deliver a certificate evidencing the ownership of such number of shares of Parent Common Stock and/or any cash, dividends and other distributions in respect thereof issuable and/or payable in exchange for such lost, stolen or destroyed Certificate pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Kbw, Inc.)
Surrender and Payment. (a) Clearwire has appointed Prior to the Effective Time, AT&T shall appoint an agent (the "Exchange Agent Agent") for the purpose of exchanging the Merger Consideration for:
(i) exchanging certificates representing shares of Clearwire Capital MediaOne Common Stock (the “"Common Certificates”") or
for the Common Stock Consideration, (ii) uncertificated exchanging certificates representing shares of Clearwire Capital MediaOne Series C Preferred Stock (the “Uncertificated Shares”"Series C Certificates") for the Series C Consideration, (iii) exchanging certificates representing shares of MediaOne Series D Preferred Stock (the "Series D Certificates") for the Series D Consideration and (iv) exchanging certificates representing shares of MediaOne Series E Preferred Stock (the "Series E Certificates")," and together with the Common Certificates, the Series C Certificates and the Series D Certificates, the "Certificates") for the Series E Consideration. At the Effective Time, AT&T will deposit with the Exchange Agent (i) the Common Stock Consideration to be paid in respect of shares of MediaOne Common Stock, (ii) the Series C Consideration to be paid in respect of shares of MediaOne Series C Preferred Stock, (iii) the Series D Consideration to be paid in respect of shares of MediaOne Series D Preferred Stock, (iv) the Series E Consideration to be paid in respect of shares of MediaOne Series E Preferred Stock and (v) cash in an amount required to be paid pursuant to Section 3.5. The Common Stock Considera- tion, Series C Consideration, Series D Consideration, Series E Consideration and cash referred to in items (i) through (v) are referred to herein as the "Exchange Fund". Upon receipt, the Exchange Agent will invest the cash portion of the Exchange Fund in United States government securities maturing at the Election Deadline or such other investments as AT&T and MediaOne may mutually agree. Promptly after the Closing DateEffective Time, NewCo AT&T will send, or will cause the Exchange Agent to send, (A) to each holder of shares of Clearwire Capital MediaOne Common Stock, MediaOne Series C Preferred Stock, MediaOne Series D Preferred Stock or MediaOne Series E Preferred Stock at the Effective Time Time, a letter of transmittal and instructions that will (which shall specify that the delivery will shall be effected, and risk of loss and title will shall pass, only on upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent.
) for use in such exchange, and (bB) Each to each holder of shares of Clearwire Capital MediaOne Common Stock, an election form (the "Election Form") providing for such holders to make the Standard Election, the Cash Election or the Stock will Election. Any Standard Election (other than a deemed Standard Election), Cash Election or Stock Election shall be entitled validly made only if the Exchange Agent shall have received by 5:00 p.m., New York City time, on a date (the "Election Deadline") to receivebe mutually agreed upon by AT&T and MediaOne (which date shall not be later than the twentieth Business Day after the Effective Time), on
an Election Form properly completed and executed (iwith the signature or signatures thereon guaranteed to the extent required by the Election Form) surrender by such holder accompanied by such holder's Common Certificates, or by an appropriate guarantee of delivery of such Common Certificates from a member of any registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States as set forth in such Election Form. Any holder of MediaOne Common Stock who has made an election by submitting an Election Form to the Exchange Agent of may at any time prior to the Election Deadline change such holder's election by submitting a Certificaterevised Election Form, together with a properly completed letter of transmittal, or
(ii) receipt of an “agent’s message” and signed that is received by the Exchange Agent (or other evidence, if any, prior to the Election Deadline. Any holder of transfer as MediaOne Common Stock may at any time prior to the Election Deadline revoke his election and withdraw his Common Certificates deposited with the Exchange Agent may reasonably requestby written notice to the Exchange Agent received by the close of business on the day prior to the Election Deadline. AT&T will make similar election forms available to the appropriate holders of shares of MediaOne Series D Preferred Stock (if such shares have not been redeemed) and MediaOne Series E Preferred Stock in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that the holder has a right to receive under Section 2.5. The shares of Class A Common Stock constituting the Merger Consideration will be in uncertificated book-entry form, unless a physical certificate is requested manner contemplated by the holder or is otherwise required under applicable Law. As a result certificates of the Merger, at the Effective Time, all designations for such shares of Clearwire Capital Stock will cease to be outstanding and each holder of Clearwire Capital Stock will cease permit such holders to have any rights make comparable elections with respect to the Clearwire Capital Stock, except conversion adjustments for such shares. AT&T shall have the right to receive make rules (which will be described in the Merger Consideration payable in respect Election Form), not inconsistent with the terms of this Agreement, governing the Clearwire Capital Stock.
(c) If any portion validity of Election Forms and the Merger Consideration is manner and extent to which Standard Elections, Cash Election or Stock Elections are to be paid to a Person other than taken into account in making the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it will be a condition to the payment that
(ideterminations prescribed by Sections 3.1(g) either the surrendered Certificate will be properly endorsed or will otherwise be in proper form for transfer or the applicable Uncertificated Share will be properly transferred, and
(ii) the Person requesting the payment will pay to the Exchange Agent any transfer or other Taxes required as a result of the payment to a Person other than the registered holder of the Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that the Tax has been paid or is not payableand 3.1(h).
(d) After the Effective Time, there will be no further registration of transfers of shares of Clearwire Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to NewCo, they will be canceled and exchanged for the Merger Consideration payable in respect of the Clearwire Capital Stock provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent under Section 2.6(a) that remains unclaimed by the holders of shares of Clearwire Capital Stock twelve months after the Closing Date will be returned to NewCo, on demand. Any holder who has not exchanged shares of Clearwire Capital Stock for the Merger Consideration in accordance with this Section 2.6 before that date will look only to NewCo for payment of the Merger Consideration, and any dividends and distributions with respect to the Merger Consideration, in respect of those shares without any interest thereon. Regardless of the preceding sentence, NewCo will not be liable to any holder of shares of Clearwire Capital Stock for any amounts properly paid to a public official under applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Clearwire Capital Stock six years after the Closing Date (or that earlier date, immediately before the time when the amounts would otherwise escheat to or become property of any Governmental Authority) will become, to the extent permitted by applicable Law, the property of NewCo, free and clear of any claims or interest of any Person previously entitled thereto.
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