Surrender and Payment. (a) Prior to the Closing Date, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock. (c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement. (e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company). (f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior At the Effective Time, all Shares outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost and expensesubject to Section 2.7, appoint an exchange agent reasonably acceptable to the Company each holder of a certificate formerly representing any Shares (the each, a “Exchange AgentCertificate”) shall cease to act have any rights as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept a shareholder of the Company’s reasonable comments thereto. Prior to .
(b) As promptly as practicable following the Closing Datedate hereof and in any event not later than five (5) Business Days thereafter, Acquiror the Shareholders’ Representative shall cause the Exchange Agent to mail to each holder of record of Company Common Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in substantially the form attached hereto as Exhibit D (E ( a “Letter of Transmittal” and, together with the applicable Certificate, the “Transmittal Documents”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate 2.6(b). The Shareholders’ Representative shall, no later than the later of (only to i) the extent such Company Stock is represented by Closing Date or (ii) five (5) Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Shareholders’ Representative (including at the reasonable request of Parent) may reasonably require in connection therewith) at least three (3) Business Days prior , pay to the Closing Date, the portion holder of the Total Consideration such Certificate a cash amount as provided in Section 2.6(b)(i) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash 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 represented shares of Company Common Stock (other than for the shares to be canceled pursuant to Shares described in Section 3.01(d2.6(a) and Dissenting Shares and subject to Section 3.09Appraisal Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.6(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentShareholders’ Representative, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a2.8. Any amounts to be paid by the Shareholders’ Representative to a Shareholder pursuant to this Section 2.8(b) shall be paid exclusively from the funds delivered to the Shareholders’ Representative by Parent pursuant to Section 3.2(b)(iii).
(bc) No dividends or other distributions declared or made after Each Shareholder shall also be entitled to any amounts that may be payable in the Effective Time with future in respect to of the 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 Shares formerly 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, from (i) the amount of dividends Indemnity Holdback Amount or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Acquiror Common StockRepresentative Expense Amount, in each case as provided in this Agreement, and (ii) payment (if any) in accordance with Section 3.3(d)(ii)(A), at the appropriate payment daterespective times and subject to the contingencies specified herein. The Shareholders’ Representative shall, subject to the amount prior receipt by the Shareholders’ Representative or Parent of dividends or other distributionsa Certificate, together with a record date Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that the Shareholders’ Representative (including at the reasonable request of Parent) may reasonably require in connection therewith, within five (5) Business Days after payment by Parent to the Effective Time but Shareholders’ Representative, for the benefit of the Shareholders (in accordance with their respective Pro Rata Shares and their respective percentages set forth in the Consideration Spreadsheet), of any amounts that become payable in the future in respect of the Shares formerly represented by such Certificate (A) from the Indemnity Holdback Amount or the Representative Expense Amount, in each case as provided in this Agreement, or (b) in accordance with Section 3.3(d)(ii)(A), pay to the prior to surrender and holder of such Certificate a payment date occurring after surrender, payable cash amount as provided in Section 2.6(b)(ii) with respect to such whole shares Certificate. Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by Shareholders on the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretoMerger Consideration.
(d) If any Certificate shall have been lost, stolen or destroyed, upon portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Merger Consideration or Non-Accredited Holder Cash Consideration is to be paid to a Person other than the Person in respect whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) 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 Shareholders’ Representative any Transfer Tax or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of the Company Stock formerly represented by Shareholders’ Representative that such Certificate in accordance with this AgreementTax has been paid or is not payable.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a Any portion of the Total Merger Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed that remains unclaimed by the Acquiror Shareholders twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such Shareholder who has not exchanged Transmittal Documents for the Company).
(f) The provisions of Merger Consideration in accordance with this Section 3.04 2.8 prior to that time shall applythereafter look only to Parent for payment of the Merger Consideration; provided, mutatis mutandis, to Noteholders entitled to a that (i) any such portion of the Total Merger Consideration payable from the Indemnity Holdback Amount or the Representative Expense Amount, as applicable, shall be held and released, retained, and/or distributed, as applicable, by or to the Persons entitled thereto in accordance with the terms of this Agreement, at the respective times and subject to the contingencies specified herein and (ii) payment (if any) in accordance with Section 3.3(d)(ii)(A) to which the Shareholders may become entitled shall become payable at the time 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 Section 3.03applicable abandoned property, with the Noteholders being required to deliver their applicable Payoff Letterescheat or similar Laws.
Appears in 1 contract
Samples: Merger Agreement (LIVE VENTURES Inc)
Surrender and Payment. If an Equityholder (aA) Prior surrenders to the Closing DatePaying Agent for cancellation (on behalf of the Surviving Corporation) the stock certificates representing such Equityholder’s shares of Company Capital Stock (collectively, Acquiror shallsuch Equityholder’s “Company Certificates”), at its sole cost and expense, appoint an exchange agent (B) delivers to Paying Agent a letter of transmittal substantially in the form of Exhibit D attached hereto with such changes as may be required by the Paying Agent and reasonably acceptable to the Company Parent and the Equityholders’ Representative (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) (including a properly completed and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical duly executed IRS Form W-9 or electronic formapplicable IRS Form W-8, 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 Total Consideration payable to such holder. The Exchange Agent shall (Aapplicable) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and customary tax forms that thereto, then the Exchange Paying Agent may reasonably require in connection therewith) at least three shall (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant to the preceding clause (A), no later than three (3) Business Days after receipt of a Certificate (only to the extent of prior delivery of such Company Stock is represented by a Certificateamounts to the Paying Agent) (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 pay to the holder of such Company Capital Stock an amount in accordance with Section 1.6(b) and such Company Certificate shall be cancelled pursuant and subject to the terms of Section 1.6(b). For the avoidance of doubt and notwithstanding any provision herein to the contrary, the Parties agree and acknowledge that each Letter of Transmittal shall contain, amongst other customary provisions: (or any Company Stock not represented by a Certificatei) representations and warranties regarding the portion submitting Equityholder’s free and clear ownership of the Total Consideration with respect to such Certificate (or any Company Capital Stock not represented by a Certificate) so surrendered covered thereby and the Certificate shall forthwith be canceled. The Exchange Agent shall Equityholder’s authority to execute and deliver the portion Letter of the Total Consideration into which Transmittal; (ii) confidentiality obligations on behalf of such Company Common Shares and Company Preferred SharesEquityholder (and, as applicable, have been converted pursuant to Section 3.01(asuch Equityholder’s Affiliates); and (iii) a comprehensive, irrevocable general release on behalf of such Equityholder (after giving effect to Section 3.01(d)and, as applicable, such Equityholder’s Affiliates) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (claims, obligations or other liabilities related to, in respect of or otherwise against the Acquired Companies or any Company Stock not represented by a Certificate). Until so surrenderedof their current or former directors, each outstanding Certificate (officers, employees, agents or Representatives in respect of any Company Stock not represented by a Certificate) that act, omission or other matter occurring or on prior to the Effective Time represented shares Closing arising from or related to such Equityholders’ ownership of Company Capital Stock (other than for or relationship to the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after Company as an Equityholder. The foregoing agreement regarding the Effective Time, for all purposes, to evidence only the right to receive the portion Letter of Transmittal is an essential element of the Total Consideration. If after the Effective Timetransactions contemplated by this Agreement and, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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 but for 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, and (ii) at the appropriate payment dateagreement, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender Parent and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts Merger Sub would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate unwilling to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with enter into this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior At the Effective Time, all Shares outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost and expensesubject to Section 2.08(b), appoint an exchange agent reasonably acceptable each Stockholder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a Stockholder of the Company.
(b) On or prior to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provideddate hereof, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Common Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, has received a letter of transmittal transmittal, in form and substance reasonably satisfactory to Parent and the form attached hereto as Exhibit D Stockholder Representative (a “Letter of Transmittal”) ), and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 2.08(a)(ii), that has delivered includes, among other things, (a) a Certificate customary release in form reasonably satisfactory to Parent and the Stockholder Representative from the respective Stockholders in favor of the Parent, Merger Subs, the Stockholder Representative, and the Company, its predecessors, successors (only including the First Step Surviving Corporation and the Final Surviving Company), Subsidiaries and other Affiliates, and all of its current and former officers, directors, employees, agents, and representatives, (b) a confirmation of the appointment of Stockholder Representative as the initial Stockholder Representative, (c) an agreement to be bound by the extent such Company Stock is represented by provisions of Article VII and Article IX, and (d) an accredited investor questionnaire (including investment representations) from the respective Stockholders in form reasonably satisfactory to Parent.
(c) Parent shall, no later than the later of (i) the Closing Date or (ii) two (2) Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Parent may reasonably require in connection therewith, (i) at least three (3) Business Days prior deliver a letter to Parent’s transfer agent directing it to deliver to the Closing DateStockholder Representative, on behalf of the holder of such Certificate, one (1) or more certificates representing, in the aggregate, the portion whole number of Parent Shares that such holder has the right to receive pursuant to Section 2.08(a)(ii) and (ii) deliver to the Stockholder Representative, on behalf of the Total Consideration holder of such Certificate, a cash amount as provided in Section 2.08(a)(ii), with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash 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 represented shares of Company Stock Shares (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.08(a)(ii). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentParent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.10.
(bd) No dividends or other distributions declared or made after Each Stockholder shall also be entitled to any amounts that may be payable in the Effective Time with future in respect of the Shares formerly represented by such Certificate from the Earn-Out Consideration, at the respective time and subject to the Acquiror Common Stock with a record date after the Effective Time contingencies specified herein and therein. Unless otherwise provided herein, no interest 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 accrued for the surrender benefit of such Certificate Stockholders on the Merger Consideration.
(or Company Stock not represented by a Certificatee) until If any portion of 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 Merger Consideration is 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 a Person other than the holder of Person in whose name the certificates representing shares of Acquiror Common Stock issued in exchange thereforsurrendered Certificate is registered, without interest, it shall be a condition to such payment that (i) the amount of dividends such Certificate shall be properly endorsed or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Acquiror Common Stockshall otherwise be in proper form for transfer, and (ii) at the appropriate Person requesting such payment date, the amount of dividends shall pay to Parent any transfer or other distributions, with Tax required as a record date after result of such payment to a Person other than the Effective Time but prior registered holder of such Certificate or establish to surrender and a payment date occurring after surrender, payable with respect to the reasonable satisfaction of Parent that such whole shares of Acquiror Common StockTax has been paid or is not payable.
(cf) Notwithstanding anything to the contrary in this Agreement, 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. Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three Stockholders two (32) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shallthe Company will appoint Citibank N.A. as the depository agent (the “Depository Agent”) and Epiq Corporate Restructuring as the paying agent (the “Paying Agent” and such agreement, at its sole cost in form and expense, appoint an exchange agent substance reasonably acceptable to the Company and the Buyer after the date hereof, entered into among the Company, the Depository Agent and the Paying Agent), the “Paying Agent Agreement”) for the purpose of exchanging Units for the applicable consideration payable pursuant to this ARTICLE 2 and making payments to the Sellers.
(b) Following the Effective Time, each Unitholder will be entitled to receive, after submitting to the Paying Agent his, her or its properly completed letter of transmittal, in the form of Exhibit L attached hereto (the “Exchange AgentTransmittal Documents”) to act as for each such Unit held by such Unitholder (other than Excluded Units and Rollover Units) the exchange agent consideration provided for in Section 2.04 payable in the First Merger; provided, however, that Acquiror manner and at the times set forth in this Agreement. Each Unit shall afford be deemed at any time after the Company the opportunity Effective Time to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 represent only the right to receive upon delivery of the applicable Transmittal Documents, such portion of Total the Aggregate Closing Merger Consideration and Additional Consideration as may be required pursuant to this Agreement. Following the Effective Time, each Optionholder shall be entitled to receive, after submitting to the Company his or her properly completed Option Cancellation Agreement, such portion of the Aggregate Closing Merger Consideration and Additional Consideration as may be required pursuant to this Agreement. Each Option shall be deemed at any time after the Effective Time to represent only the right to receive upon delivery of the Option Cancellation Agreement, such portion of the Aggregate Closing Merger Consideration and Additional Consideration as may be required pursuant to this Agreement.
(c) No later than five Business Days prior to the date on which the Closing is scheduled to occur, the Company will send or the Company and Parent shall direct the Paying Agent to electronically send to each Unitholder the Transmittal Documents for use in connection with the Contemplated Transactions. Subject to Section 2.04, Section 2.06(e) and this Section 2.07(c), the Company will direct (and the Surviving Company will cause) the Paying Agent to pay to each Unitholder by wire transfer of immediately available funds the portion of the Aggregate Closing Merger Consideration payable to such holder. The Exchange Agent shall Unitholder as set forth in the Payment Allocation Schedule, (Ai) on immediately following the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that Effective Time if such Unitholder has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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) Paying Agent, at least three (3) Business Days prior to the Closing Date, properly executed Transmittal Documents and wire transfer instructions, together with such other documents as may reasonably be required by the portion of the Total Consideration with respect to such Certificate Paying Agent, or (or any Company Stock not represented by a Certificateii) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant to the preceding clause (A), no later than otherwise within three (3) Business Days after the date of receipt of a Certificate (only to by the extent such Company 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 Paying Agent may reasonably require in connection therewith), issue to the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to required deliveries from such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretoUnitholder.
(d) If any Certificate shall have been lostAfter the Effective Time, stolen or destroyed, upon the making there will be no further registration of an affidavit transfers of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a Units. Any portion of the Total Aggregate Closing Merger Consideration made available to the Depositary Agent and Paying Agent pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed 2.07(a) that remains unclaimed by the Acquiror Sellers one year after the Effective Time will be returned to the Surviving Company, and any Unitholder who has not exchanged its Units for the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a applicable portion of the Total Aggregate Closing Merger Consideration pursuant prior to Section 3.03such time and any other Seller who has not otherwise received such Seller’s portion of the Aggregate Closing Merger Consideration, with will thereafter look only to the Noteholders being required Surviving Company for payment thereof without any interest thereon. Any Additional Consideration made available to deliver their the Depositary Agent and Paying Agent that remains unclaimed by the Sellers one year after the date of such deposit will be returned to the Surviving Company, and any Unitholder who has not exchanged its Units or any other Seller who has otherwise not received such Seller’s applicable Payoff Letterportion of Additional Consideration prior to such time will thereafter look only to the Surviving Company for payment thereof without any interest thereon.
Appears in 1 contract
Samples: Merger Agreement (Compass Group Diversified Holdings LLC)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, appoint an exchange agent Purchaser shall designate a bank or trust company reasonably acceptable to the Company to act as paying agent (the “Exchange Paying Agent”) for the payment of the Merger Consideration in respect of Certificates (as defined below) that, immediately prior to act the Effective Time, represent Common Shares entitled to payment of the Merger Consideration pursuant to Section 1.2. Immediately prior to the Effective Time, Purchaser shall deposit, or cause to be deposited, in trust with the Paying Agent in cash the aggregate Merger Consideration into which Common Shares shall have been converted pursuant to Section 1.2, such amount being hereinafter referred to as the exchange agent “Payment Fund.”
(b) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of certificates that, immediately prior to the Effective Time, represent Common Shares (the “Certificates”) a form of letter of transmittal which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent and instructions for use in surrendering such Certificates and receiving the Merger Consideration in respect thereof. Upon the surrender of each such Certificate, together with a duly executed letter of transmittal and any other required documents, the Paying Agent shall, as soon as practicable, pay the holder of such Certificate an amount equal to the product of (x) the Merger Consideration multiplied by (y) the number of Common Shares formerly represented by such Certificate, less any required withholding taxes, in consideration therefor, and such Certificate shall be cancelled. Until so surrendered, each such Certificate (other than Certificates representing Purchaser Shares, Common Shares held in the First Mergertreasury of the Company or by any wholly-owned Subsidiary of the Company, LFSRI Shares or Dissenting Shares) shall represent solely the right to receive the aggregate Merger Consideration relating thereto. The Paying Agent shall invest the Payment Fund as directed by Purchaser (so long as such directions do not impair the rights of the holders of Common Shares) in direct obligations of, or money market funds substantially all the assets of which are invested in direct obligations of, the United States of America, or by any agency the obligations of which are backed by the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest. Any interest and other income resulting from such investments shall be paid to Purchaser, and no interest or other income shall be paid or accrued on the Merger Consideration to the holders of Common Shares. Subject to Section 1.3(c), the Paying Agent shall, pursuant to irrevocable instructions, pay the Merger Consideration as set forth in this Section 1.3 out of the Payment Fund. The Payment Fund shall not be used for any purpose other than as provided herein. If the Merger Consideration (or any portion thereof) is to be delivered to any individual, corporation, trust, association, unincorporated association, estate, partnership, joint venture, limited liability company, Governmental Authority or other legal entity (each, a “Person”), other than the Person in whose name the Certificate surrendered is registered, it shall be a condition to such right to receive such Merger Consideration that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer, that the signatures on the Certificate shall be properly guaranteed, and that the Person surrendering such Common Shares shall pay to the Paying Agent any transfer or other taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Paying Agent that such taxes have been paid or are not applicable. In the event any Certificate shall have been lost, stolen or destroyed, the Paying Agent shall be required to pay the full Merger Consideration in respect of any Common Shares represented by such Certificate; provided, however, that Acquiror shall afford Purchaser may require the Company owner of such lost, stolen or destroyed Certificate to execute and deliver to the opportunity Paying Agent a form of affidavit claiming such Certificate to review any proposed Contract with the Exchange Agent prior be lost, stolen or destroyed in form and substance reasonably satisfactory to executionPurchaser, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder posting by such owner of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal bond in the form attached hereto such amount as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, Purchaser may determine is reasonably necessary as the case indemnity against any claim that may be made against Purchaser or the Paying Agent.
(the “Certificates”), to the extent c) At any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) time following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock date which 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and 135 days after the Effective Time, for Surviving Corporation may require that the Paying Agent shall deliver to Surviving Corporation all purposescash, Certificates and other documents in its possession relating to evidence only the right to receive transactions contemplated by this Agreement. Thereafter, each holder of a Certificate (other than Certificates representing Purchaser Shares, Common Shares held in the portion treasury of the Total Consideration. If after Company or by any wholly-owned Subsidiary of the Effective TimeCompany, any Certificate (LFSRI Shares or any Company Stock not represented by a CertificateDissenting Shares) is presented to the Exchange Agent, it shall be canceled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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 may surrender such Certificate (or Company Stock not represented by a Certificate). Subject to the effect of escheatSurviving Corporation and (subject to applicable abandoned property, tax escheat and similar Laws) receive in consideration therefor the aggregate Merger Consideration relating thereto, without any interest or other applicable Lawsincome thereon. Notwithstanding the foregoing, following surrender none of Purchaser, Merger Sub, the Surviving Corporation, the Company or the Paying Agent shall be liable to any Person in respect of any cash properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any such Certificate (or Company Stock Certificates shall 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, have been surrendered immediately prior to such time when the amounts date on which any payment pursuant to this Section 1.3 would otherwise escheat to or become the property of any Governmental Authority) shall become, the cash payment in respect of such Certificate shall, to the extent permitted by applicable Law, become the property of Acquiror the Surviving Corporation, free and clear of any all claims or interest interests of any Person previously entitled thereto.
(d) If any Certificate shall have been lost, stolen or destroyed, upon Immediately prior to the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange AgentEffective Time, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect stock transfer books of the Company Stock formerly represented by such Certificate shall be closed, and, after the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Common Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent, they shall be surrendered and cancelled in accordance with return for the payment of the aggregate Merger Consideration relating thereto, as provided in this AgreementSection 1.3.
(e) The provisions From and after the Effective Time, all holders of this Section 3.04 Certificates evidencing ownership of Common Shares outstanding immediately prior to the Effective Time (other than the Certificates representing Purchaser Shares) shall apply, mutatis mutandis, cease to Company Optionholders entitled have any rights with respect to a portion such Common Shares except (i) holders of Common Shares that are not Dissenting Shares may surrender such Certificates in exchange for the Total Merger Consideration pursuant to this Agreement, (ii) holders of Dissenting Shares may perfect any rights of appraisal as a holder of Dissenting Shares that such holders may have pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion 262 of the Total DGCL and (iii) holders of Dissenting Shares who fail to perfect or withdraw or otherwise lose the right to appraisal may surrender such Certificates in exchange for the Merger Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letterthis Agreement.
Appears in 1 contract
Surrender and Payment. (a) Prior Immediately prior to the Closing DateEffective Time, Acquiror shallParent shall deposit or shall cause to be deposited, at with a nationally recognized financial institution selected by Parent with the Company’s prior approval (such approval not to be unreasonably withheld or delayed) (the “Paying Agent”), for the benefit of the Company’s stockholders (other than holders of Dissenting Shares or Excluded Shares), a cash amount in immediately available funds necessary for the Paying Agent to make payments contemplated by Section 3.02(a) (such cash being referred to as the “Exchange Fund”). With respect to any Dissenting Shares, Parent shall only be required to deposit or cause to be deposited with the Paying Agent funds sufficient to pay the aggregate Merger Consideration payable in respect of such Dissenting Shares if the holder thereof fails to perfect or effectively withdraws or losses its sole cost appraisal rights under the DGCL. The Paying Agent shall also act as the agent for the Company’s stockholders for the purpose of receiving and expense, holding the stockholders’(i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares represented by book-entry (the “Uncertificated Shares”) but shall acquire no rights or interests in Shares represented thereby. The Paying Agent agreement pursuant to which Parent shall appoint an exchange agent the Paying Agent shall be in form and substance reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror and Parent. The Paying Agent shall afford the Company the opportunity to review any proposed Contract with invest the Exchange Agent prior to executionFund as directed by Parent. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.02
(a) shall accept the Company’s reasonable comments thereto. Prior be promptly returned to the Closing DateSurviving Corporation. The Paying Agent shall make delivery of the aggregate Merger Consideration out of the Exchange Fund in accordance with this Agreement. The Exchange Fund shall not be used for any purpose that is not expressly provided for in this Agreement.
(b) (i) Promptly after the Effective Time (and in any event within two (2) Business Days thereafter), Acquiror the Surviving Corporation shall cause the Exchange Paying Agent to mail to each holder of record of Company Stock entitled to receive a portion Certificate representing Shares (other than holders of the Total Consideration pursuant to Section 3.01, Excluded Shares) (A) a letter of transmittal in customary form specifying that delivery shall be effected, and risk of loss and title to the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender Certificates shall pass, only upon proper delivery of the certificates 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 Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate Certificates (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder affidavits of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed loss in accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require in connection therewith), issue to the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled and exchanged lieu thereof as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.Section
Appears in 1 contract
Samples: Merger Agreement (PharMerica CORP)
Surrender and Payment. (a) Prior to the Closing Date, Acquiror shall, at its sole cost and expense, Parent will appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as for the exchange agent in purpose of exchanging certificates representing the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record shares of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be (the “Certificates”), to ) for the extent any such Final Merger Consideration payable in respect of the shares of Company Stock is represented evidenced by a Certificateeach such Certificate (less the Escrow Holdback). Immediately following the Effective Time, Parent will make available the Final Merger Consideration (less the Escrow Amount) to be paid in exchange for respect of the Certificates.
(b) Each holder of outstanding Company Stock that has been converted into the right to receive the applicable portion of Total Final Merger Consideration payable will be entitled to such holder. The receive, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal (which shall (A) on specify that the Closing Datedelivery shall be effected, issue and risk of loss and title shall pass, only upon proper delivery of the Certificate to the Exchange Agent), the Final Merger Consideration less the Escrow Holdback issuable and/or payable for each holder of record share of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a such Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, Time each such Certificate shall represent for all purposes, to evidence purposes only the right to receive the such Final Merger Consideration.
(c) If any portion of the Total ConsiderationFinal Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that the Certificate 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 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 the Effective Time, there shall be no further registration of transfers of shares of Company Stock. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the Final Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(be) No dividends Any portion of the Final Merger Consideration made available to the Exchange Agent pursuant to Section 2.06(a) (and any interest or other distributions declared or made after income earned thereon) that remains unclaimed by the Effective Time with respect to the Acquiror Common holders of shares of Company Stock with a record date ninety (90) Business Days after the Effective Time shall be paid returned to the Parent, upon demand, and any such holder who has not exchanged shares 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 Final Merger Consideration issuable and/or payable in respect 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, and Company Stock (iiless the Escrow Holdback applicable thereto) at the appropriate payment date, the amount of dividends or other distributions, in accordance with a record date after the Effective Time but this Section 2.06 prior to surrender and a that time shall thereafter look only to Parent for payment date occurring after surrender, of the Final Merger Consideration issuable and/or payable with in respect to of such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by Company Stock without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Holders three (3) years after the Effective Time (Stock for any amount paid to a public official pursuant to applicable abandoned property, escheat or such earlier date, immediately similar laws. Immediately prior to such time when the amounts remaining unclaimed by holders of shares of Company Stock would otherwise escheat to or become property of any Governmental Authority) governmental authority, such unclaimed amounts shall become, to the extent permitted by applicable Lawlaw, the property of Acquiror Parent free and clear of any claims or interest of any Person Persons previously entitled thereto.
(df) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Final Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.032.06(a) to pay for shares of Company Stock for which appraisal rights have been perfected shall be returned to Parent, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)upon demand.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Affymetrix Inc)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as for the exchange agent in purpose of exchanging for the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record Merger Consideration certificates representing shares of Company Common Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record and uncertificated shares of Company Common Stock entitled to receive a portion (the “Uncertificated Shares”). As of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, Parent shall deposit with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder aggregate Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Merger Consideration to be paid in respect of the Certificates and Uncertificated Shares (the “Payment Fund”). Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Common Stock at the Effective Time a letter of transmittal which shall be in reasonable and customary form and instructions and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.09 or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the CVR Agreement.
(b) Upon surrender of a Certificate (or affidavit of loss in lieu thereof as provided in Section 2.09) to the Exchange Agent in accordance with the terms of such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration in respect of the Company Common Stock represented by such Certificate, and the Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates.
(c) Notwithstanding anything to the contrary in this Agreement, any holder of Uncertificated Shares shall not be required to deliver a Certificate or an executed letter of transmittal to the Exchange Agent to receive the Merger Consideration that such holder is entitled to receive pursuant to this Article 2. In lieu thereof, each holder of record of one or more Uncertificated Shares whose Shares were converted into the right to receive the Merger Consideration shall upon receipt by the Exchange Agent of an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request), be entitled to receive, and Parent shall cause the Exchange Agent to pay and deliver as promptly as reasonably practicable after the Effective Time, the Merger Consideration in respect of each such Uncertificated Share, and the Uncertificated Shares of such holder shall forthwith be cancelled.
(d) 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 on the books of the Company, it shall be a condition to such payment that either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and the Person requesting such payment shall pay to the Exchange Agent any transfer or other similar Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(e) 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 Common Stock formerly represented by such Certificate or Uncertificated Shares and from and after the Effective Time, there shall be no further registration of transfers of shares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)Article 2.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a Any portion of the Total Payment Fund that remains unclaimed by the holders of shares of Company Common Stock twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws.
(g) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.032.05 in respect of any Dissenting Shares shall be returned to Parent, upon demand, provided that Parent shall return such portion of the Merger Consideration to the Exchange Agent to the extent that the holder of such Dissenting Shares fails to perfect, withdraws or otherwise loses such holder’s appraisal rights under Delaware Law with the Noteholders being required respect to deliver their applicable Payoff Lettersuch shares.
Appears in 1 contract
Surrender and Payment. (a) Prior Following the date hereof and prior to the Closing DateEffective Time, Acquiror shall, at its the Company’s sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall (i) afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior ; and (ii) not appoint an Exchange Agent prior to the Closing DateEffective Time in such a manner that will result in costs or expenses to the Company to be paid by the Company prior to the Effective Time or in the event that the Merger Agreement is terminated, in each case in clause (ii), absent the written consent of the Company. Promptly after the appointment of the Exchange Agent, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock (including Former Service Provider Shares and after giving effect to the conversion of the AFC Convertible Note pursuant to Section 3.05 and the automatic exercise of the AFC Warrant pursuant to Section 3.06) entitled to receive a portion of the Total Closing Date Merger Consideration pursuant to Section 3.013.01 (other than the Base Acquiror Options and the Earnout Acquiror Options), at the Company’s sole cost and expense, a letter of transmittal (which shall be in the form attached hereto as Exhibit D and substance reasonably acceptable to the Company) (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Certificatethe Certificates, in exchange for the right to receive the applicable portion of Total Closing Date Merger Consideration payable to such holder. The Exchange Agent shall (A) on at or promptly following the Closing DateEffective Time, issue to each holder of record of Company Stock entitled to receive a portion of the Total Closing Date Merger Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Closing Date Merger Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Closing Date Merger Consideration pursuant to Section 3.01 that did not receive such portion of the Total Closing Date 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Closing Date Merger Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver (x) the portion of the Total Stock Merger Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d), Section 3.05 and Section 3.06) and Section 3.01(b), respectively, as reflected in the Stockholder Ownership Allocation, electronically through book entry-delivery or, upon the written request of any Company Stockholder, in the form of an original stock certificate to the address set forth in such Company Stockholder’s Letter of Transmittal, (y) the Cash Merger Consideration payable to each Company Stockholder in accordance with the Ownership Allocation as in immediately available funds in accordance with the payment instructions set forth in such Company Stockholder’s Letter of Transmittal and (z) the Spreadsheet, electronically through book entry-deliveryLiquidation Preference Amount to the Company Preferred Stockholder in immediately available funds in accordance with the payment instructions 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 Total Closing Date 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 represented shares of Company Stock (other than for the Dissenting Shares and other shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09)) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Merger Consideration. If after the Effective Time, any Certificate (or 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(a3.07(a).
(b) If any portion of the Closing Date Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate (or any Company Stock not represented by a Certificate) is registered, it shall be a condition to such payment that (i) 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 transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate (or any Company Stock not represented by a Certificate) or establish to the reasonable satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(c) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(cd) Any Closing Consideration and Non-Accredited Holder Cash Date Merger Consideration remaining unclaimed by the Company Holders Stockholders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(de) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Merger Consideration to be paid in respect of the Company Stock Shares formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Acamar Partners Acquisition Corp.)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shallParent shall appoint XX Xxxxxx, at its sole cost and expenseN.A., appoint an exchange as paying agent reasonably acceptable to or such other paying agent with the Company Company’s prior approval, which shall not be unreasonably withheld (the “Exchange Paying Agent”) for the purpose of exchanging for the Per Share Merger Consideration (i) certificates representing the Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). Parent shall make available or cause to act be made available to the Paying Agent amounts sufficient in the aggregate to provide all funds necessary for the Paying Agent to make payments of the Per Share Merger Consideration pursuant to Section 4.1(a) (such cash being hereinafter referred to as the exchange agent in “Exchange Fund”). If a Dissenting Shareholder effectively withdraws its demand for, or loses its, appraisal rights pursuant to Article 13 of the First Merger; providedGBCC with respect to any Dissenting Shares, however, that Acquiror Parent shall afford the Company the opportunity make available or cause to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior be made available to the Closing DatePaying Agent additional funds in an amount equal to the product of (i) the number of Dissenting Shares for which the Dissenting Shareholder has withdrawn its demand for, Acquiror or lost its, appraisal rights pursuant to Article 13 of the GBCC and (ii) the Per Share Merger Consideration.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days thereafter), the Surviving Corporation shall cause the Exchange Paying Agent to mail to each holder of record of Company Stock entitled Shares (other than holders of Excluded Shares to receive a portion of the Total Consideration pursuant to Section 3.01, extent such holders do not also hold Shares that are not Excluded Shares) (i) a letter of transmittal in customary form approved by counsel to the Company prior to the Acceptance Time specifying that delivery shall be effected, and risk of loss and title shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(e)) or transfer of the Uncertificated Shares to the Paying Agent, such letter of transmittal to be in such form attached hereto and have such other provisions as Exhibit D Parent and the Company may reasonably agree, and (a “Letter of Transmittal”ii) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, Certificates (or affidavits of loss in physical lieu thereof as provided in Section 4.2(e)) or electronic form, as the case may be (the “Certificates”), to the extent any such Company Stock is represented by a Certificate, Uncertificated Shares in exchange for the right to receive the applicable portion of Total Consideration payable to such holderPer Share Merger Consideration. The Exchange Agent shall Upon (A) on the Closing Date, issue to each holder surrender of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only or affidavit of loss in lieu thereof as provided in Section 4.2(e)) to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed Paying Agent in accordance with the instructions thereto and customary tax forms that terms of such letter of transmittal, duly executed, or (B) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably require request) in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant to the preceding clause (A), no later than three (3) Business Days after receipt case of a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter book-entry transfer 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)Uncertificated Shares, issue to the holder of such Certificate (or any Company Stock not represented by Uncertificated Shares shall be entitled to receive in exchange therefor a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) cash amount in immediately available funds (after giving effect to any required Tax withholdings as provided in Section 3.01(d4.2(g)) equal to (x) the number of Shares represented by such Certificate (or affidavit of loss in accordance with lieu thereof as provided in Section 4.2(e)) or Uncertificated Shares multiplied by (y) the Ownership Allocation as set forth in Per Share Merger Consideration, and the Spreadsheet, electronically through book entry-deliveryCertificate so surrendered and the Uncertificated Shares so transferred shall forthwith be cancelled. Unless otherwise provided herein, no No interest shall will be paid or shall accrue accrued on any portion amount payable upon due surrender of the Total Consideration payable Certificates or Uncertificated Shares. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a check for any cash to be exchanged upon due surrender of any the Certificate (or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding may be issued to such transferee if the Certificate (or any Company Stock not represented by a Certificate) that prior formerly representing such Shares is presented to the Effective Time represented shares of Company Stock Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable.
(other than for the shares to be canceled pursuant to Section 3.01(dc) and Dissenting Shares and subject to Section 3.09) shall be deemed from From and after the Effective Time, for all purposes, to evidence only there shall be no transfers on the right to receive the portion stock transfer books of the Total ConsiderationCompany of the Shares that were outstanding immediately prior to the Effective Time. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentSurviving Corporation, Parent or the Paying Agent for transfer, it shall be canceled cancelled and exchanged as provided for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this Section 3.04(a)Article IV.
(bd) No dividends or other distributions declared or made after Any portion of the Effective Time with respect to Exchange Fund (including the Acquiror Common Stock with a record date proceeds of any investments thereof) that remains unclaimed by the Company Shareholders for one year after the Effective Time shall be paid delivered to the Surviving Corporation. Any holder of Shares (other than Excluded Shares) who has not theretofore complied with this Article IV shall thereafter look only to the Surviving Corporation for payment of the Per Share Merger Consideration (after giving effect to any unsurrendered Certificate required Tax withholdings as provided in Section 4.2(g)) upon due surrender of its Certificates (or Company Stock not represented by a Certificateaffidavits of loss in lieu thereof) with respect or due transfer of its Uncertificated Shares, without any interest thereon. Notwithstanding the foregoing, none of the Surviving Corporation, Parent, the Paying Agent or any other Person shall be liable 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 any former holder of such Certificate (Shares for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat 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 similar 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(de) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange AgentParent, the posting by such Person of a bond, bond in customary amount and upon such customary and reasonable amount terms as the Company may direct, be required by Parent as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Exchange Paying Agent shall issue, will issue a check in exchange for the amount (after giving effect to any required Tax withholdings as provided in Section 4.2(g)) equal to the number of Shares represented by such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed multiplied by the Acquiror and the Company)Per Share Merger Consideration.
(f) No Person who has perfected a demand for dissenters’ rights pursuant to Article 13 of the GBCC with respect to any Dissenting Shares shall be entitled to receive the Per Share Merger Consideration with respect to such Dissenting Shares owned by such Person unless and until such Person shall have effectively withdrawn or lost such Person’s right to payment of the “fair value” for such shares under the GBCC with respect to such Dissenting Shares. If any such Dissenting Shareholder shall have effectively withdrawn or lost such right at or following the Effective Time, each Dissenting Share held by such Dissenting Shareholder shall thereupon be deemed to have been converted into and to have become, as of the Effective Time, the right to receive, without any interest thereon, the Per Share Merger Consideration. Unless and until a Dissenting Shareholder shall have effectively withdrawn or lost such Dissenting Shareholder’s right to appraisal under the GBCC with respect to Dissenting Shares, each Dissenting Shareholder shall be entitled to receive only the payment provided by Article 13 of the GBCC with respect to such Dissenting Shares. The provisions Company shall (i) promptly notify Parent of any written demands for appraisal, attempted withdrawals of such demands, and any other instruments received by the Company relating to shareholders’ rights of appraisal and with such notice to Parent provide to Parent a copy of all such demands, attempted withdrawals and other instruments received by the Company and (ii) give Parent the opportunity to direct and control all negotiations and proceedings with respect to demand for appraisal under the GBCC. The Company shall not, except with the prior written consent of Parent, make any payment with respect to any demands for appraisal, offer to settle or settle any such demands or approve any withdrawal of any such demands. Each holder of Dissenting Shares who becomes entitled under Article 13 of the GBCC to receive payment of the “fair value” for such holder’s shares shall receive such payment therefor from the Surviving Corporation after giving effect to any required withholdings as provided in Section 4.2(g) (but only after the amount thereof shall have been finally determined pursuant to the GBCC).
(g) Each of Parent, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable to a Person pursuant to this Agreement or the Offer any amounts that are required to be deducted and withheld with respect to the making of such payment under applicable Law. To the extent that amounts are so withheld by Parent, the Surviving Corporation or the Paying Agent, as the case may be, such withheld amounts (i) shall be remitted to the applicable Governmental Entity, and (ii) shall be treated for all purposes of this Section 3.04 shall apply, mutatis mutandis, Agreement as having been paid to Noteholders entitled to a portion the Person in respect of which the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letterdeduction and withholding was made.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 1.7, each holder of a certificate formerly representing the Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of OneQor.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Terra Tech shall appoint an exchange agent reasonably acceptable to the Company OneQor (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided.
(c) Promptly after the Effective Time, howeverbut no later than three (3) calendar days therefrom, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror Parties shall cause the Exchange Agent to mail to each holder the Persons who were record holders of record of Company OneQor Common Stock entitled that was converted into the right to receive a portion of Acquisition Shares immediately prior to the Total Consideration pursuant to Section 3.01, Effective Time: (i) a letter of transmittal in form reasonably acceptable to Terra Tech and OneQor prior to the form attached hereto as Exhibit D Effective Time and containing such customary provisions (including a “Letter provision confirming that delivery of Transmittal”Certificates shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of such Certificates to the Exchange Agent) and; and (ii) instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for certificates representing Terra Tech Common Stock. Upon surrender of a Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Terra Tech: (A) the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing the number of whole shares of Terra Tech Common Stock that such holder has the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to the provisions of Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled1.6; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred SharesUntil surrendered as contemplated by this Section 1.8(c), as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest each Certificate shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrendereddeemed, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence represent only the right to receive the portion shares of the Total ConsiderationTerra Tech Common Stock. If after the Effective Time, any Certificate (shall have been lost, stolen or any Company Stock not represented by destroyed, Terra Tech may, in its discretion and as a Certificate) is presented condition precedent to the Exchange Agentdelivery of any shares of Terra Tech Common Stock, require the owner of such lost, stolen or destroyed Certificate to provide an applicable affidavit with respect to such Certificate. If any certificates evidencing shares of Terra Tech Common Stock are to be issued in a name other than that in which the surrendered Certificate is registered, it shall be canceled a condition of the issuance thereof that the Certificate so surrendered shall be properly endorsed or accompanied by an executed form of assignment separate from the Certificate and exchanged as provided otherwise in this Section 3.04(a)proper form for transfer, and that the Person requesting such exchange pay to the Exchange Agent any transfer or other tax required by reason of the issuance of a new certificate for shares of Terra Tech Common Stock in any name other than that of the registered holder of the Certificate surrendered or otherwise establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(bd) No dividends or other distributions declared or made after Any portion of the Effective Time with respect to Acquisition Shares that remain unclaimed by the Acquiror Common Stock with a record date Shareholders, the SAFE 1 Holders and the OneQor Post-Closing SAFE Holders 180 days after the Effective Time shall be returned to Terra Tech, upon demand, and any such Shareholder, SAFE 1 Holder or OneQor Post-Closing SAFE Holder who has not exchanged Certificates for Acquisition Shares in accordance with this Section 1.8(d) prior to that time shall thereafter look only to Terra Tech for issuance of the Acquisition Shares. Notwithstanding the foregoing, Terra Tech shall not be liable to any holder of Certificates for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Shareholders, SAFE 1 Holders three or OneQor Post-Closing SAFE Holders two (32) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityBody) shall become, to the extent permitted by applicable LawLaws, the property of Acquiror Terra Tech free and clear of any claims or interest of any Person previously entitled thereto.
(de) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Acquisition Shares made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Terra Tech, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Terra Tech Corp.)
Surrender and Payment. (a) At the Effective Time, all Shares 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”) shall cease to have any rights as a stockholder of the Company and shall have no rights as a stockholder of the Surviving Corporation and such Certificate shall forthwith be cancelled.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent Exchange Agent, the cost of which shall be borne fifty percent (50%) by Parent and fifty percent (50%) by the Company, reasonably acceptable to the Company to act as the Exchange Agent in the Merger (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with ). Parent or the Exchange Agent shall deduct the foregoing amounts payable by the Company from any Additional Payments, prior to execution, and shall accept distribution to the Company’s reasonable comments thereto. Prior to Equityholders in accordance with Section 2.13.
(c) Promptly following the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion shall, with the reasonable assistance of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic formEquityholder Representative, as the case may be (the “Certificates”), to the extent promptly as practical after receipt of any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and customary tax forms documents that the Exchange Agent may reasonably require require, make an electronic book entry for the applicable number of Parent Merger Shares due to an Equityholder, if any, in connection therewith) at least three (3) Business Days prior to the Closing Dateeach case, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled2.06. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or shall accrue on any portion of the Total Consideration cash, stock or other consideration payable upon surrender of any or issuable hereunder. Each 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 represented shares of Company Common Stock or Preferred Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to be cancelled and any such Certificate shall not evidence only the any right to receive the any portion of the Total Considerationapplicable consideration under Section 2.06 and Section 2.12. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, no Merger consideration shall be exchanged therefor.
(d) If any portion of the applicable consideration under Section 2.06 is to be paid to a Person other than the Person in whose name is registered on the books and records of the Company at the Effective Time, it shall be canceled a condition to such payment that (i) the Person requesting such payment shall pay to the Exchange Agent any transfer or other Tax 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 and exchanged as provided in this Section 3.04(a)(ii) the Exchange Agent may require the Person or such Person’s purported representatives to furnish supporting documentation evidencing such Person’s or representative’s authority to act and/or to furnish a medallion signature guarantee.
(be) No dividends or other distributions declared or made after Promptly following the Effective Time with respect date of this Agreement, the Company shall deliver to each Optionholder any required notices regarding the Acquiror Common Stock with a record date after Merger and Agreement to Exercise Option in substantially the form attached hereto as Exhibit E (an “Option Exercise Agreement”). Each Option that is not exercised prior to the Effective Time shall be paid to canceled without the holder payment of any unsurrendered Certificate (or Company Stock not represented consideration therefor. Promptly following the receipt by a Certificate) with respect to the Acquiror Common Stock issuable Exchange Agent of the Parent Merger Shares, the Exchange Agent shall deliver to such holder hereunder who delivered to the Company a duly completed and executed Option Exercise Agreement prior to the Effective Time the portion of the Parent Merger Shares, if any, to which such Person is entitled pursuant to Section 2.06(b) and Section 2.06(d) and in consideration accordance with the Parent Merger Shares Spreadsheet, for which Parent Merger Shares Parent will file a Registration Statement pursuant to Section 5.11.
(f) Promptly following the surrender date of such Certificate this Agreement, the Company shall deliver to each Warrantholder any required notices regarding the Merger and Agreement to Exercise Warrant in substantially the form attached hereto as Exhibit F (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“Warrant Exercise Agreement”). Subject Each Warrant that is not exercised prior to the effect of escheat, tax or other applicable Laws, following surrender Effective Time shall be canceled without the payment of any consideration therefor. Promptly following the receipt by the Exchange Agent of the Parent Merger Shares, the Exchange Agent shall deliver to such Certificate (or Company Stock not represented by a Certificate), there shall be paid holder who delivered to the holder Company a duly completed and executed Warrant Exercise Agreement prior to the Effective Time the portion of the certificates representing shares Parent Merger Shares, if any, to which such Person is entitled pursuant to Section 2.06(b) and Section 2.06(e) and in accordance with the Parent Merger Shares Spreadsheet, for which Parent Merger Shares Parent will file a Registration Statement pursuant to Section 5.11.
(g) Any portion of Acquiror Common Stock issued in exchange therefor, without interest, the Parent Merger Shares that remains unclaimed six (i6) the amount of dividends months or other distributions with a record date more after the Effective Time and theretofore paid with respect (or, in the case of any payment of Additional Payments, six (6) months or more after the first payment of such amounts) shall be returned to such shares of Acquiror Common Stockthe Equityholder Representative, upon demand, and (ii) any such Equityholder shall look only to the Exchange Agent and the Equityholder Representative for payment of the applicable consideration under Section 2.06; provided, that any funds payable from the Equityholder Representative Expense Fund shall be held and distributed to the Persons entitled thereto in accordance with the terms of this Agreement at the appropriate payment date, respective times and subject to the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender contingencies specified herein and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stocktherein.
(ch) Any Closing Consideration portion of the applicable consideration under Section 2.06 made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, upon demand.
(i) Notwithstanding anything to the contrary contained here, Parent and Non-Accredited Holder Cash Consideration the Surviving Corporation and their Affiliates 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. Any amounts remaining unclaimed by the Company Holders three any Equityholder two (32) years after the Effective Time (or, in the case of Additional Payments, if any, two (2) years after the first payment of such amounts) (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the . The Exchange Agent shall issue, in exchange for deliver any such lost, stolen funds to Parent within fifteen (15) Business Days after the applicable two (2)-year anniversary by wire transfer or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementimmediately available funds.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing Date, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) No later than 10 Business Days prior to the Closing Date, Parent shall send, or cause the portion of the Total Consideration with respect Paying Agent to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Timesend, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock is represented by a Certificate) (together with each Equityholder a Letter of Transmittal duly Transmittal, to be completed and validly executed delivered by such Equityholder to effect the exchange of such Equityholder’s Company Membership Interests, for the payment of the consideration payable in accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require Section 2.04 in connection therewith), issue to the holder respect of such Certificate (or Equityholder’s Company Membership Interests, without any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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)thereon.
(b) No dividends Upon (i) surrender by an Equityholder of a properly completed and duly executed Letter of Transmittal (together with properly completed and duly executed tax forms), such Equityholder shall be entitled to (A) promptly receive from the Paying Agent the portion of the Estimated Merger Consideration to which such Equityholder is entitled pursuant to Section 2.04 and (B) receive the remaining consideration to be paid pursuant to Section 2.08, if any.
(c) If any portion of the consideration to be paid pursuant to Section 2.04 hereto is to be paid to a Person other than the Person in whose name the related Company Membership Interest is registered, it shall be a condition to such payment that the Person requesting such payment shall pay to Parent any transfer or other distributions declared Taxes required as a result of such payment to a Person other than the registered holder of such Company Membership Interest or made after establish to the satisfaction of Parent that such Tax has been paid or is not payable.
(d) After the Effective Time with respect Time, the transfer books of the Company shall be closed and there shall be no further registration of transfers of Company Membership Interests.
(e) Any portion of the Exchange Fund which remains undistributed to the Acquiror Common Stock with a record date Equityholders for six months after the Effective Time shall be paid delivered to the holder of any unsurrendered Certificate (or Company Stock Parent, upon demand, and Equityholders who have not represented by a Certificate) theretofore complied with respect this Article 2 shall thereafter look only to the Acquiror Common Stock issuable to such holder hereunder in consideration Parent 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 payment 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 Stockrelevant consideration as provided in, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with with, this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)Article 2.
(f) The provisions Notwithstanding the foregoing, none of this Section 3.04 Parent, Merger Sub, the Company, the Surviving Company, the Equityholders’ Representative or any other Person shall apply, mutatis mutandis, be liable to Noteholders entitled any Equityholder for any amount properly delivered to a portion of the Total Consideration Governmental Authority pursuant to Section 3.03applicable abandoned property, with the Noteholders being required to deliver their applicable Payoff Letterescheat or similar Applicable Laws.
Appears in 1 contract
Samples: Merger Agreement (Cable One, Inc.)
Surrender and Payment. (a) Prior to Promptly after the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror Surviving Corporation shall cause the Exchange Agent to mail to each holder record holder, as of record the Effective Time, of certificates representing outstanding shares of Company Common Stock entitled to receive a portion ("Company Certificates") or shares of the Total Consideration pursuant to Section 3.01Company Common Stock represented by book-entry ("Company Book-Entry Shares") (in Merger Agreement each case, other than Dissenting Shares), a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper delivery of the Company Certificates to the Exchange Agent or, in the form attached hereto as Exhibit D case of Company Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) (a “the "Letter of Transmittal”") and instructions for use in effecting the surrender of the certificates evidencing such Company StockCertificates or, in physical or electronic form, as the case may be (of Company Book-Entry Shares, the “Certificates”surrender of such shares for payment of the Merger Consideration therefor. After the Effective Time, upon surrender in accordance with this Section 3.4(a), to the extent any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Dateof a Company Certificate or Company Book-Entry Shares, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a such Letter of Transmittal Transmittal, duly completed and validly executed in accordance with the instructions thereto thereto, and customary tax forms that such other documents as may be required pursuant to such instructions, the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 promptly deliver to the holder of such Company Certificate or Company Book-Entry Shares in exchange therefor, the Merger Consideration (or any Company Stock not represented without interest), to be received by a Certificate) the portion of the Total Consideration with respect holder thereof pursuant to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceledthis Agreement. The Exchange Agent shall deliver accept such Company Certificates or Company Book-Entry Shares upon compliance with such reasonable terms and conditions as the portion Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Total Consideration into which such Company or its transfer agent of shares of Company Common Stock and, if Company Certificates or Company Book-Entry Shares are presented to the Company for transfer, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be paid in a name other than that in which the Company Certificate surrendered for exchange is registered, it shall be a condition of such exchange that the Company Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Company Preferred Sharesor its transfer agent any transfer or other taxes required by reason of the payment of the Merger Consideration in a name other than that of the registered holder of the Company Certificate surrendered, or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as applicablecontemplated by this Section 3.4(a), have been converted pursuant each Company Certificate and each Company Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.01(a3.1.
(b) (after giving effect to Section 3.01(d)) The Merger Consideration paid upon the surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest terms of this Article 3 shall be deemed to have been paid or shall accrue on any portion in full satisfaction of the Total 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 all rights pertaining to the Effective Time represented shares of Company Common Stock so exchanged.
(other than for c) At any time following the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and date which is nine months after the Effective Time, for Parent shall be entitled to require the Exchange Agent to deliver to it any funds (including any interest received with respect thereto) which have been made available to the Exchange Agent and which have not been disbursed to holders of Company Certificates or Company Book-Entry Shares and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the applicable Merger Consideration payable upon due surrender of their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all purposescharges and expenses, to evidence only the right to receive the portion including those of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it in connection with the exchange of shares of Company Common Stock for the Merger Consideration. None of Parent, the Surviving Corporation, any Subsidiary or Affiliate of Parent or the Surviving Corporation or the Exchange Merger Agreement Agent shall be canceled and exchanged as provided in this Section 3.04(a).
(b) No dividends liable to any former holder of Company Common Stock for cash delivered to public officials pursuant to any applicable abandoned property, escheat or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretosimilar laws.
(d) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and, if required requested by the Company or the Exchange AgentSurviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Company Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Company Certificate, the Exchange Agent shall issuewill pay, in exchange for such lost, stolen or destroyed Company Certificate, the Closing Consideration or Non-Accredited Holder Cash Merger Consideration to be paid in respect of the shares of Company Common Stock formerly represented by such Certificate in accordance with this AgreementCompany Certificate.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent agent, reasonably acceptable satisfactory to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration certificates representing shares of Company Common Stock (the “Certificates”). Prior to act as the exchange agent in the First Merger; providedEffective Time, however, that Acquiror Parent shall afford the Company the opportunity deposit or cause to review any proposed Contract be deposited with the Exchange Agent prior in a separate fund established for the benefit of the holders of shares of Company Common Stock, cash sufficient to execution, 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 accept be invested by the CompanyExchange Agent as directed by Parent or the Surviving Corporation in: (A) direct obligations of, or obligations the 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 reasonable comments theretoCorporation 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. Prior The earnings and interest thereon shall be paid to Parent or as Parent directs. Promptly after the Closing DateEffective Time, Acquiror Parent shall send, or shall cause the Exchange Agent to mail send, to each holder of record of shares of Company Common Stock entitled to receive a portion of at the Total Consideration pursuant to Section 3.01Effective Time, a letter of transmittal in the form attached hereto as Exhibit D (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 Certificates to the Exchange Agent) for use in effecting such exchange.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, the Merger Consideration in respect of the certificates evidencing Company Common Stock represented by each such Company Stock, in physical Certificate. Until so surrendered or electronic formtransferred, as the case may be (be, each such Certificate shall represent after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall Merger Consideration.
(Ac) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a If any portion of the Total Merger Consideration pursuant is to Section 3.01 be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that has delivered a (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (only ii) the Person requesting such payment shall pay to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the Closing Date, the portion satisfaction of the Total Consideration with respect to Exchange Agent that such Certificate tax has been paid or is not payable.
(or any Company Stock not represented by a Certificated) so surrendered and the Certificate shall forthwith be canceled; and (B) following After the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest there shall be paid or shall accrue on any portion no further registration of the Total Consideration payable upon surrender transfers 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and Common Stock. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for all purposesthe Merger Consideration provided for, to evidence only and in accordance with the right to receive the procedures set forth, in this Article 2.
(e) Any portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented Merger Consideration made available to the Exchange Agent, it shall be canceled Agent pursuant to Section 2.04(a) (and exchanged as provided in this Section 3.04(a).
(b) No dividends any interest or other distributions declared or made after income earned thereon) that remains unclaimed by the Effective Time with respect to the Acquiror holders of shares of Company Common Stock with a record date six months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Common Stock for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders three (3) Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authoritygovernmental authority) shall become, to the extent permitted by applicable Lawlaw, the property of Acquiror Parent 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Morgan Stanley)
Surrender and Payment. (a) Prior At the Effective Time, all Shares, Options and Warrants outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost subject to Section 2.10, each holder of a certificate formerly representing any Shares (each, a “Certificate”) and expense, appoint each holder of record of an exchange agent reasonably acceptable Option or a Warrant shall cease to have any rights as a stockholder of the Company or a holder of Options or Warrants.
(the “Exchange Agent”b) to Parent shall act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. .
(c) Prior to receiving any portion of the Final Closing DateMerger Consideration, Acquiror shall cause the Exchange Agent to mail to each holder of record any issued and outstanding Shares of Company Stock entitled Series 2 Preferred (other than Dissenting Shares) immediately prior to receive the Effective Time, whether or not represented by a portion of the Total Consideration pursuant Certificate, shall have delivered to Section 3.01, Parent (i) a properly completed and duly executed letter of transmittal in substantially the form attached hereto as Exhibit D F (a “Letter of Transmittal”) together with such other documents as may be reasonably requested pursuant to the instructions therein and (ii) the Certificates held of record by such Shareholder. On the date of this Agreement, after the execution of this Agreement, the Shareholder Representative shall mail to each holder of Shares of Series 2 Preferred a Letter of Transmittal and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Final Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate 2.8(b). Parent shall, no later than the later of (only to i) the extent such Company Stock is represented by Closing Date or (ii) three (3) Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Parent may reasonably require in connection therewith) at least three (3) Business Days prior , pay to the Closing Date, the portion holder of the Total Consideration such Certificate a cash amount as provided in Section 2.8(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceledcancelled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or shall accrue on any portion of the Total Consideration cash 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 represented shares of Company Stock Series 2 Preferred (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationFinal Closing Merger Consideration payable pursuant to Section 2.8(b) as provided in Section 2.8(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentParent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.11.
(bd) No dividends or other distributions declared or made after If any portion of the Effective Time with respect Final Closing Merger Consideration is to the Acquiror Common Stock with a record date after the Effective Time shall be paid to a Person other than the holder of any unsurrendered Person in whose name the surrendered Certificate (or Company Stock not represented by is registered, it shall be a Certificate) with respect to the Acquiror Common Stock issuable condition 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, payment that (i) the amount of dividends such Certificate shall be properly endorsed or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Acquiror Common Stockshall otherwise be in proper form for transfer, and (ii) at the appropriate Person requesting such payment date, the amount of dividends shall pay to Parent any transfer or other distributionsTax required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of Parent that such Tax has been paid or is not payable.
(e) Until surrendered as contemplated by this Section 2.11(e), with a record date after each Share of Series 2 Preferred shall be deemed as of the Effective Time but prior to represent only the right to receive, upon surrender of such Certificate and delivery of a payment date occurring after surrenderproperly completed and duly executed Letter of Transmittal together with such other documents as may be reasonably requested pursuant to the instructions thereto in accordance with this Section 2.11, payable with respect the consideration into which such Share shall have been converted pursuant to such whole shares of Acquiror Common StockSection 2.8(b).
(cf) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to any holder of Series 2 Preferred at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority) Authority pursuant to applicable Laws shall become, to the extent permitted by applicable LawLaws, the property of Acquiror Parent, free and clear of any all Liens, claims or interest interests of any Person previously entitled thereto.
(d) If any Certificate shall have been lost, stolen or destroyed, . All cash paid upon the making conversion of an affidavit Shares of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate Series 2 Preferred in accordance with this Agreement.
(e) The provisions the terms of this Section 3.04 Article II shall apply, mutatis mutandis, be deemed to Company Optionholders entitled have been paid in full satisfaction of all rights pertaining to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)such Shares.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Realpage Inc)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company a bank or trust company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 purpose of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common exchanging certificates representing Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Merger Consideration. If after the Effective TimeParent will, any Certificate (or any Company Stock not represented by a Certificate) is presented will cause Merger Subsidiary to, make available to the Exchange Agent, it shall be canceled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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, and (ii) at the appropriate payment dateneeded, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Merger Consideration to be paid in respect of the Company Stock formerly represented by Shares (the “Exchange Fund”). For purposes of determining the Merger Consideration to be made available, Parent shall assume that no holder of Shares will perfect his right to demand cash payment of the fair market value of his Shares pursuant to Chapter 15 of the PBCL. Promptly after the Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of Shares at the Effective Time a letter of transmittal for use in such Certificate exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Shares to the Exchange Agent). The Exchange Agent shall, pursuant to irrevocable instructions, make the payments provided in accordance with this Section 2.2. The Exchange Fund shall not be used for any other purpose, except as provided in this Agreement.
(eb) The provisions Each holder of this Section 3.04 shall applyShares that have been converted into a right to receive the Merger Consideration, mutatis mutandisupon surrender to the Exchange Agent of a certificate or certificates representing such Shares, to Company Optionholders together with a properly completed letter of transmittal covering such Shares and other customary documentation, will be entitled to receive the Merger Consideration payable in respect of such Shares. As of the Effective Time, all such Shares shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate previously representing any such Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration, without interest, upon surrender of the certificates representing such Shares, as contemplated hereby.
(c) If any portion of the Total Merger Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form is to be mutually agreed paid to a person other than the registered holder of the Shares represented by the Acquiror certificate or certificates surrendered in exchange therefor, it shall be a condition to such payment that the certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Company).
(f) The provisions person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a person other than the registered holder of such Shares or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. For purposes of this Section 3.04 shall applyAgreement, mutatis mutandis“person” means an individual, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03corporation, with the Noteholders being required to deliver their applicable Payoff Lettera partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
Appears in 1 contract
Samples: Merger Agreement (Quovadx Inc)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost Parent shall appoint a bank or trust company designated by Parent and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) and shall cause to act be deposited with the Exchange Agent, in trust for the benefit of the holders of Company Common Stock and the Performance Units, certificates representing the shares of Parent Common Stock and an amount of cash in U.S. dollars sufficient to be issued and paid pursuant to Sections 2.1, 2.3 and 2.6(d), payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) or non-certificated Company Common Stock represented by book-entry (“Book-Entry Shares”) pursuant to the provisions of this Article II. Following the Effective Time, Parent agrees to make available to the Exchange Agent, from time to time as the exchange agent needed, cash in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity U.S. dollars sufficient to review pay any proposed Contract dividends and other distributions pursuant to Section 2.2(f). Any cash and certificates representing Parent Common Stock deposited with the Exchange Agent prior (including the amount of any dividends or other distributions payable with respect thereto and such cash in lieu of fractional shares to executionbe paid pursuant to Section 2.3) shall be referred to in this Agreement as the “Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 2.1 out of the Exchange Fund. Except as contemplated by Section 2.3, the Exchange Fund shall not be used for any other purpose. As soon as reasonably practicable after the Effective Time and shall accept in any event not later than the Company’s reasonable comments thereto. Prior to second business day following the Closing DateEffective Time, Acquiror shall Parent will cause the Exchange Agent to mail send to each holder of record of shares of Company Common Stock, whose Company Common Stock entitled to receive a portion of was converted into the Total Merger Consideration pursuant to Section 3.012.1, (i) a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Exchange Agent) in such form attached hereto as Exhibit D Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Exchange Agent, and (a “Letter of Transmittal”ii) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, Certificates (or effective affidavits of loss in physical lieu thereof) or electronic form, as the case may be (the “Certificates”), to the extent any such Company Stock is represented by a Certificate, Book-Entry Shares in exchange for the Merger Consideration. Exchange of any Book-Entry Shares shall be effected in accordance with Parent’s customary procedures with respect to securities represented by book entry.
(b) Each holder of shares of Company Common Stock that have been converted into a right to receive the applicable portion of Total Consideration payable Merger Consideration, upon surrender to such holder. The the Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the extent such Company Stock is represented by a Certificate) (Exchange Agent, together with a Letter properly completed letter of Transmittal transmittal, duly executed and completed and validly executed in accordance with the instructions thereto thereto, and customary tax forms that such other documents as may reasonably be required by the Exchange Agent may reasonably require Agent, will be entitled to receive in connection therewithexchange therefor (i) at least three one or more shares of Parent Common Stock (3which shall be in non-certificated book-entry form unless a physical certificate is requested) Business Days prior representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.1 (after taking into account all shares of Company Common Stock then held by such holder) and (ii) a check in the amount equal to the Closing Date, the cash portion of the Total Merger Consideration with respect to that such Certificate (or any Company Stock not represented by a Certificate) so surrendered and holder has the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled right to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion 2.1 and this Article II, including cash payable in lieu of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted fractional shares pursuant to Section 3.01(a2.3 and dividends and other distributions pursuant to Section 2.2(f) (after giving effect to Section 3.01(dless any required Tax withholding)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or shall accrue accrued on any portion Merger Consideration, cash in lieu of the Total Consideration fractional shares or on any unpaid dividends and distributions payable upon surrender to holders of any Certificate (or any Company Stock not represented by a Certificate)Certificates. Until so surrendered, each outstanding such Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive the portion of the Total such Merger Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(d) If any cash payment is to be made to a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall have been lost, stolen or destroyed, upon be a condition of such payment that the Person requesting such payment shall pay any transfer Taxes required by reason of the making of an affidavit such cash payment to a Person other than the registered holder of loss and indemnity by the Person claiming such surrendered Certificate or shall establish to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, the posting by such Person satisfaction 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 Certificate, the Exchange Agent shall issue, in exchange for that such lost, stolen Tax has been paid or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a is not payable. If any portion of the Total Merger Consideration pursuant is to Section 3.03, with be registered in the Company Optionholders being required to deliver an option cancellation agreement in lieu 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 a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.4
Appears in 1 contract
Samples: Merger Agreement (Urs Corp /New/)
Surrender and Payment. (a) Prior At the Effective Time, all Shares outstanding immediately prior to the Closing Date, Acquiror shall, at its sole cost Effective Time shall automatically be cancelled and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, retired and shall accept the Company’s reasonable comments thereto. Prior cease to the Closing Dateexist, Acquiror shall cause the Exchange Agent and, subject to mail to Section 2.09, each holder of record of Company Stock entitled a certificate formerly representing any Shares shall cease to receive have any rights as a portion shareholder of the Total Consideration pursuant Company.
(b) Immediately after the Effective Time, the Shareholder Representative shall distribute to Section 3.01, each Shareholder: (i) a letter of transmittal in the form attached hereto as Exhibit D I hereto, (each, a “Letter of Transmittal”), and (ii) and instructions for use in effecting the surrender of the certificates evidencing each stock certificate representing such Company StockShareholder’s Shares (collectively, in physical or electronic form, as the case may be (the such Shareholder’s “Certificates”), to the extent any such Company Stock is represented by a Certificate, ) in exchange for the right amount to receive the applicable portion of Total Consideration payable be paid to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration Shareholder pursuant to Section 3.01 that has delivered 2.08. Upon surrender to the Surviving Corporation of a Certificate (only to the extent such Company Stock is represented by a Certificate) (for cancellation, together with a such Letter of Transmittal 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 (3) Business Days prior to the Closing Datethereto, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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 Certificate shall be entitled to receive in exchange therefor, without interestsubject to Section 2.09 and this Section 2.10, (i) the amount of dividends or other distributions with a record date after the Effective Time and theretofore paid with respect consideration payable to such shares of Acquiror Common Stock, holder pursuant to Section 2.08 without interest thereon and (ii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior Shareholder Representative shall be authorized to surrender and a payment date occurring after surrender, payable with respect to make such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(d) payment. If any Certificate shall have has been lost, stolen or destroyed, upon Shareholder Representative may, with Xxxxxx’s permission (which shall not be unreasonably withheld) and as a condition precedent to the making payment of any Closing Per Share Merger Consideration to such Shareholder, require such Shareholder to provide an appropriate affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, the posting by such Person of deliver a bond, bond (in such reasonable amount sum as the Company Parent may reasonably direct, ) as indemnity against any claim that may be made against it Parent or the Surviving Corporation with respect to such Certificate, . Each Shareholder shall also be entitled to any amounts that may be payable in the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid future in respect of the Company Stock Shares formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this as provided by Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company2.08(b).
(fc) The provisions of this Section 3.04 shall apply, mutatis mutandis, If payment is to Noteholders entitled be made to a portion Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment shall pay any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate and establish to the reasonable satisfaction of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff LetterShareholder Representative that such Tax has been paid or is not payable.
Appears in 1 contract
Samples: Merger Agreement (Northwest Pipe Co)
Surrender and Payment. (a) Prior to Promptly after the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror Surviving Corporation shall cause the Exchange Agent to mail to each holder record holder, as of record the Effective Time, of certificates representing outstanding shares of Company Common Stock entitled to receive a portion ("Company Certificates") or shares of the Total Consideration pursuant to Section 3.01Company Common Stock represented by book-entry ("Company Book-Entry Shares") (in each case, other than Dissenting Shares), a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper delivery of the Company Certificates to the Exchange Agent or, in the form attached hereto as Exhibit D case of Company Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) (a “the "Letter of Transmittal”") and instructions for use in effecting the surrender of the certificates evidencing such Company StockCertificates or, in physical or electronic form, as the case may be (of Company Book-Entry Shares, the “Certificates”surrender of such shares for payment of the Merger Consideration therefor. After the Effective Time, upon surrender in accordance with this Section 3.4(a), to the extent any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Dateof a Company Certificate or Company Book-Entry Shares, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a such Letter of Transmittal Transmittal, duly completed and validly executed in accordance with the instructions thereto thereto, and customary tax forms that such other documents as may be required pursuant to such instructions, the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 promptly deliver to the holder of such Company Certificate or Company Book-Entry Shares in exchange therefor, the Merger Consideration (or any Company Stock not represented without interest), to be received by a Certificate) the portion of the Total Consideration with respect holder thereof pursuant to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceledthis Agreement. The Exchange Agent shall deliver accept such Company Certificates or Company Book-Entry Shares upon compliance with such reasonable terms and conditions as the portion Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Total Consideration into which such Company or its transfer agent of shares of Company Common Stock and, if Company Certificates or Company Book-Entry Shares are presented to the Company for transfer, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be paid in a name other than that in which the Company Certificate surrendered for exchange is registered, it shall be a condition of such exchange that the Company Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Company Preferred Sharesor its transfer agent any transfer or other taxes required by reason of the payment of the Merger Consideration in a name other than that of the registered holder of the Company Certificate surrendered, or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as applicablecontemplated by this Section 3.4(a), have been converted pursuant each Company Certificate and each Company Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.01(a3.1.
(b) (after giving effect to Section 3.01(d)) The Merger Consideration paid upon the surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest terms of this Article 3 shall be deemed to have been paid or shall accrue on any portion in full satisfaction of the Total 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 all rights pertaining to the Effective Time represented shares of Company Common Stock so exchanged.
(other than for c) At any time following the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and date which is nine months after the Effective Time, for Parent shall be entitled to require the Exchange Agent to deliver to it any funds (including any interest received with respect thereto) which have been made available to the Exchange Agent and which have not been disbursed to holders of Company Certificates or Company Book-Entry Shares and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the applicable Merger Consideration payable upon due surrender of their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all purposescharges and expenses, to evidence only the right to receive the portion including those of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it in connection with the exchange of shares of Company Common Stock for the Merger Consideration. None of Parent, the Surviving Corporation, any Subsidiary or Affiliate of Parent or the Surviving Corporation or the Exchange Agent shall be canceled and exchanged as provided in this Section 3.04(a).
(b) No dividends liable to any former holder of Company Common Stock for cash delivered to public officials pursuant to any applicable abandoned property, escheat or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretosimilar laws.
(d) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and, if required requested by the Company or the Exchange AgentSurviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Company Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Company Certificate, the Exchange Agent shall issuewill pay, in exchange for such lost, stolen or destroyed Company Certificate, the Closing Consideration or Non-Accredited Holder Cash Merger Consideration to be paid in respect of the shares of Company Common Stock formerly represented by such Certificate in accordance with this AgreementCompany Certificate.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Titan Corp)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, Buyer shall appoint a depositary (the "Depositary") for the purpose of exchanging certifi catxx xepresenting Shares for the Merger Consideration. The Depositary shall at its sole cost all times be a commercial bank having a combined capital and expense, appoint an exchange agent reasonably acceptable surplus of at least $500,000,000. Buyer will pay to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent Depositary immedi ately prior to executionthe Effective Time, and the Merger Consider ation to be paid in respect of the Shares. For purposes of determining the Merger Consideration to be so paid, Buyer shall accept assume that no holder of Shares will perfect his right to appraisal of his Shares. Promptly after the Company’s reasonable comments thereto. Prior to the Closing DateEffective Time, Acquiror shall Buyer will send, or will cause the Exchange Agent Depos itary to mail send, but in no event later than three business days after the Effective Time, to each holder of record of Company Stock entitled to receive a portion of Shares at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal for use in such exchange (which shall specify that the form attached hereto as Exhibit D (a “Letter delivery shall be effected, and risk of Transmittal”loss and title shall pass, only upon proper delivery of the certificates represent ing Shares to the Depositary) and instructions for use in effecting the surrender of the certificates 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, Shares in exchange for the Merger Consideration.
(b) Each holder of Shares that has been con verted into a right to receive the applicable portion Merger Consideration, upon surrender to the Depositary of Total Consideration payable to a certificate or certificates properly representing such holder. The Exchange Agent shall (A) on the Closing DateShares, issue to each holder together with a properly completed letter of record of Company Stock transmittal covering such Shares, will be entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed Merger Con sideration payable in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (Shares less any amounts required to be withheld under applicable federal, state, local or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)foreign income tax regulations. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and such certificate shall, after the Effective Ef fective Time, represent for all purposes, to evidence only the right to receive the portion of the Total such Merger Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Merger Consideration or Non-Accredited Holder Cash Consideration is to be paid in respect to a Person other than the registered holder of the Company Stock formerly Shares represented by the certificate or certificates surrendered in exchange therefor, it shall be a condition to such Certificate payment that the certificate or certificates so surrendered shall be properly endorsed or otherwise be in accordance with proper form for transfer and that the Person requesting such payment shall pay to the Deposi tary any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Shares or establish to the satisfaction of the Depositary that such tax has been paid or is not payable. For purposes of this Agreement, "Person" means an indi vidual, a corporation, limited liability company, a part nership, an association, a trust or any other entity or organization, including a government or political subdi vision or any agency or instrumentality thereof.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) and (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Parent and the Exchange Agent shall enter into an exchange agent agreement in form and substance reasonably satisfactory to Parent and the First Merger; providedCompany. Parent shall make available to the Exchange Agent, howeveras needed, that Acquiror the Stock Consideration to be paid in respect of the Certificates and the Uncertificated Shares. Parent shall afford the Company the opportunity deposit or cause to review any proposed Contract be deposited with the Exchange Agent prior cash in an amount equal to executionthe Cash Consideration to be paid in respect of the Certificates and the Uncertificated Shares, which amount shall represent the maximum Cash Consideration payable in connection with the First Merger assuming no holder of Company Stock shall perfect its appraisal rights. Any cash deposited with the Exchange Agent to pay the Cash Consideration shall be deposited in a separate fund established for the benefit of the holders of Company Stock and shall accept not be used for any purpose other than as set forth in this Article 3. Such cash shall be invested by the CompanyExchange Agent as directed by Parent in: (A) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the Xxxxxx Xxxxxx xx Xxxxxxx 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 reasonable comments theretoCorporation and P1 by Mxxxx’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. Prior to Promptly after the Closing DateEffective Time, Acquiror Parent shall send, or shall cause the Exchange Agent to mail send, to each holder of record shares of Company Stock entitled to receive a portion of at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions in form reasonably satisfactory to Parent and the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in effecting such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Parent, the Company and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) 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 Merger Consideration in respect of the certificates evidencing Company Stock represented by such Certificate or such Uncertificated Share. The shares of Parent Stock constituting part of such Merger Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Company Stock, in physical Stock or electronic formis otherwise required under applicable law. Until so surrendered or transferred, as the case may be (be, each such Certificate or Uncertificated Share shall represent after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall Merger Consideration.
(Ac) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a If any portion of the Total Merger Consideration pursuant is to Section 3.01 be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that has delivered a (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (only ii) the Person requesting such payment shall pay to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the Closing Date, the portion satisfaction of the Total Consideration with respect to Exchange Agent that such Certificate taxes have been paid or are not payable.
(or any Company Stock not represented by a Certificated) so surrendered and the Certificate shall forthwith be canceled; and (B) following After the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest there shall be paid or shall accrue on any portion no further registration of the Total Consideration payable upon surrender transfers 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and Stock. If, after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (Certificates or any Company Stock not represented by a Certificate) is Uncertificated Shares are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 3.
(be) No dividends or other distributions declared or Any portion of the Merger Consideration made after the Effective Time with respect available to the Acquiror Common Exchange Agent pursuant to Section 3.06(a) that remains unclaimed by the holders of shares of Company Stock with a record date six months after the Effective Time shall be returned to Parent upon demand by Parent (together with any interest or other income thereon), and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this Section 3.06 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Stock for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders three (3) Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Lawlaw, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(df) If No dividends or other distributions with respect to securities of Parent constituting part of the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.07, shall be paid to the holder of any Certificate Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section 3.06. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been lostregistered, stolen (i) at the time of such surrender or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agenttransfer, the posting by amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.07 and the amount of all dividends or other distributions with a bond, in record date after the Effective Time previously paid or payable on the date of such reasonable amount as the Company may direct, as indemnity against any claim that may be made against it surrender with respect to such Certificatesecurities, 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 the surrender or transfer and with a payment date subsequent to the surrender or transfer payable with respect to such securities.
(g) Any portion of the Merger Consideration made available to the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.033.06(a) or Section 3.07 to pay for shares of Company Stock for which appraisal rights have been perfected shall be returned to Parent, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed upon demand by the Acquiror and the Company)Parent.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares 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”) shall cease to have any rights as a shareholder of the Company and shall have no rights as a shareholder of the Surviving Corporation.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent Exchange Agent reasonably acceptable to the Company to act as the Exchange Agent in the Merger (the “Exchange Agent”).
(c) to act as Promptly following, but in no event more than five (5) Business Days after the exchange agent in the First Merger; providedOption and Warrant Exercise Date (defined below), however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion Shares as of the Total Consideration pursuant to Section 3.01, Option and Warrant Exercise Date a letter of transmittal in substantially the form attached hereto as Exhibit D E (a the “Letter of Transmittal”) and with instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable the consideration due to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only 2.06. Subject to the extent such Company Stock is represented by terms and conditions of this Agreement, the Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) ten (10) Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith, (A) at least three (3) Business Days prior pay to the Closing Date, holder of such Certificate from the Exchange Fund a cash amount equal to the applicable cash portion of the Total Closing Merger Consideration due to such holder, if any, and (B) issue to the holder of such Certificate the applicable number of Parent Merger Shares due to such holder, if any, in each case, pursuant to Section 2.06 and with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash 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 represented shares of Company Common Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Considerationapplicable consideration under Section 2.06. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.09.
(bd) No dividends If any portion of the applicable consideration under Section 2.06 is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) 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 transfer or other distributions declared Tax required as a result of such payment to a Person other than the registered holder of such Certificate or made establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(e) Promptly following, but no later than two (2) Business Days after, the date of this Agreement, the Company shall deliver to each Optionholder set forth on the Initial Consideration Payout Spreadsheet an Amendment to Stock Option Agreement and Agreement to Exercise Option in the form attached hereto as Exhibit F (a “Option Exercise Agreement”). Each Warrant that is not exercised prior to the January 24, 2020, (the “Option and Warrant Exercise Date”) shall be canceled without the payment of any consideration therefor. The Company shall ensure that, at as of the Option and Warrant Exercise Date, each Optionholder shall have exercised all of such Optionholder’s Options (which exercise may be conditioned on the occurrence of Effective Time) or confirmed in writing that such Optionholder will not exercise such Optionholder’s Options. Promptly following the receipt by the Exchange Agent of the Exchange Fund, the Exchange Agent shall deliver to such holder who delivered to the Company a duly completed and executed Option Exercise Agreement on or prior to the Option and Warrant Exercise Date the portion of the Closing Merger Consideration to which such Person is entitled pursuant to Section 2.06(c) and Section 2.06(e) and in accordance with the Initial Consideration Payout Spreadsheet.
(f) Promptly following, but no later than two (2) Business Days after, the date of this Agreement, the Company shall deliver to each Warrantholder set forth on the Initial Consideration Payout Spreadsheet an Amendment to Warrant and Agreement to Exercise Warrant in the form attached hereto as Exhibit G (a “Warrant Exercise Agreement”). Each Warrant that is not exercised prior to the Option and Warrant Exercise Date shall be canceled without the payment of any consideration therefor. The Company shall ensure that, at as of the Option and Warrant Exercise Date, each Warrantholder shall have exercised all of such Warrantholder’s Warrants (which exercise may be conditioned on the occurrence of Effective Time) or confirmed in writing that such Warrantholder will not exercise such Warrantholder’s Warrants. Promptly following the receipt by the Exchange Agent of the Exchange Fund, the Exchange Agent shall deliver to such holder who delivered to the Company a duly completed and executed Warrant Exercise Agreement on or prior to the Option and Warrant Exercise Date the portion of the Closing Merger Consideration to which such Person is entitled pursuant to Section 2.06(c) and Section 2.06(f) and in accordance with the Initial Consideration Payout Spreadsheet.
(g) Any portion of the Exchange Fund that remains unclaimed six (6) months or more after the Effective Time with respect (or, in the case of any payment of any Earnout Consideration or the release of funds from the Equityholder Representative Expense Fund, if any, six (6) months or more after the first payment of such amounts) shall be returned to the Acquiror Common Stock Equityholder Representative, upon demand, and any such Shareholder who has not exchanged Certificates (other than Optionholders or Warrantholders who delivered Option Exercise Agreements or Warrant Exercise Agreement, as applicable) in accordance with a record date after this Section 2.09 prior to that time shall thereafter look only to the Effective Time Exchange Agent and the Equityholder Representative for payment of the applicable consideration under Section 2.06; provided, that any funds payable from the Equityholder Representative Expense Fund shall be held and distributed to the Persons entitled thereto in accordance with the terms of this Agreement at the respective times and subject to the contingencies specified herein and therein; provided, further, that any portion of the Equityholder Representative Expense Fund that relates to unclaimed funds under Section 2.06 shall be retained by the Equityholder Representative, and any such Shareholder who has not exchanged Certificates (other than Optionholders or Warrantholders who delivered Option Exercise Agreements or Warrant Exercise Agreements, as applicable) under this Section 2.09 shall thereafter look only to the Equityholder Representative for payment of such consideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of Certificates for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three any Shareholders two (32) years after the Effective Time (or, in the case of any Earnout Consideration or funds released from the Equityholder Representative Expense Fund, if any, two (2) years after the first payment of such amounts) (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto. The Exchange Agent shall deliver any such funds to Parent within fifteen (15) Business Days after the applicable two (2)-year anniversary by wire transfer or immediately available funds.
(dh) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate applicable consideration under Section 2.06 made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Parent, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (OncoCyte Corp)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an Colonial Stock Transfer Company or another exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as for the exchange agent in purpose of exchanging Certificates or Book Entry Shares representing Company Shares for the First applicable Merger Consideration. Immediately upon completion of the Merger; provided, however, that Acquiror Parent shall afford the Company the opportunity to review any proposed Contract deposit with the Exchange Agent prior Agent, the Merger Consideration to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed paid in accordance with this Article 2. Promptly after the instructions thereto and customary tax forms that Effective Time and, in any event, not later than the Exchange Agent may reasonably require in connection therewith) at least three (3) third Business Days prior to Day following the Closing Date, the portion Surviving Corporation shall send, or shall instruct the Exchange Agent to send, to each record holder of Company Shares at the Effective Time a letter of transmittal, which shall be in a form reasonably acceptable to Company, 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 Total Consideration with respect Certificates or Book Entry Shares to the Exchange Agent) for use in such Certificate exchange.
(or any Company Stock not represented by a Certificateb) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any Each holder of record of Company Stock Shares shall be entitled to receive a portion the Merger Consideration in respect of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant Company Common Stock represented upon surrender to the preceding clause (A), no later than three (3) Business Days after receipt Exchange Agent of a Certificate or Certificates (only or affidavits of loss in lieu thereof (and bond, if required) as provided in Section 2.07 or, in the case of Book Entry Shares, upon adherence to the extent such Company 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation procedures as set forth in the Spreadsheetletter of transmittal) representing such shares, electronically through book entry-deliverytogether with a properly completed letter of transmittal. Unless otherwise provided herein, no No interest shall will be paid or accrued on any amount payable upon due surrender of the Certificates.
(c) Promptly after the Effective Time and, in any event, not later than the third Business Day following the Closing Date, the Surviving Corporation shall accrue on send, or shall instruct the Exchange Agent to send, to each record holder of a Company Stock Option in respect of which a cash payment is payable at the Effective Time under Section 2.04 a notice summarizing such holder’s rights under this Agreement with respect to such award and setting forth any procedures that such holder must follow to receive payment.
(d) If any portion of the Total Merger Consideration payable is to be paid to a Person other than the Person in whose name the surrendered Certificate or the Book Entry Share is registered, it shall be a condition to such payment that either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such book entry shall be properly transferred, and the Person requesting such payment shall pay to the Exchange Agent any transfer or other similar Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Book Entry Share or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(e) The payment of the applicable Merger Consideration upon the surrender of any Certificate (Certificates 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 Book Entry Shares in accordance with the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) terms hereof shall be deemed from to have been payment in full satisfaction of all rights pertaining to the Company Common Stock formerly represented by such Certificate or Book Entry Share. From and after the Effective Time, for all purposes, to evidence only there shall be no further registration of transfers of Company Shares on the right to receive the portion stock transfer books of the Total ConsiderationSurviving Corporation. If If, after the Effective Time, any Certificate (Certificates or any Company Stock not represented by a Certificate) is Book Entry Shares are presented to the Exchange AgentSurviving Corporation, it they shall be canceled cancelled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(bf) No dividends Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to Article 2 (and any interest or other distributions declared or made after the Effective Time with respect to the Acquiror Common Stock with a record date income earned thereon) that remains unclaimed by holders of Company Shares six months after the Effective Time shall be paid returned to the Surviving Corporation, upon demand, and any such holder of any unsurrendered Certificate (or who has not exchanged such Company Stock not represented by a Certificate) Shares for the Merger Consideration in accordance with this Section 2.02 prior to that time shall thereafter look to Surviving Corporation only as general creditors thereof with respect to the Acquiror Common Stock issuable to such holder hereunder any Merger Consideration in consideration for the surrender respect of such Certificate (or Company Stock Shares without any interest thereon. Notwithstanding the foregoing, Surviving Corporation shall not represented by a Certificate) until the be liable to any 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 Shares for any such Certificate (or Company Stock not represented by a Certificate), there shall be amounts paid to the holder of the certificates representing shares of Acquiror Common Stock issued in exchange therefora public official pursuant to applicable abandoned property, without interest, (i) the amount of dividends escheat or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Acquiror 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 a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) similar laws. Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to Shares at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Acquiror Surviving Corporation or its designee 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Princeton Security Technologies, Inc.)
Surrender and Payment. (a) Prior At the Effective Time, all shares of Company Capital Stock outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.8, each holder of a certificate formerly representing any share of Company Capital Stock (each, a “Certificate”) shall cease to have any rights as a shareholder of the Company other than as provided herein. At the Closing, all Options outstanding immediately prior to the Closing Date, Acquiror shall, at its sole cost shall automatically be cancelled and expense, appoint an exchange agent reasonably acceptable shall cease to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to executionexist, and each holder of record of an Option shall accept cease to have any rights as a holder of Options other than as provided herein.
(b) As promptly as practicable following the Company’s reasonable comments thereto. Prior to Effective Time, and in any event not later than three (3) Business Days thereafter, the Closing Date, Acquiror Paying Agent shall cause the Exchange Agent to (A) mail to each holder of record of Company Capital Stock entitled to receive a portion of the Total Consideration that was converted pursuant to Section 3.01, 2.6 into the right to receive applicable Merger Consideration a letter of transmittal in substantially the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company StockCertificates (or delivery of an affidavit and agreement of indemnification, in physical or electronic formif any, as the case may be (the “Certificates”), to the extent any such Company Stock is represented by a Certificate, specified in Section 2.19) in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered 2.6, or (B) email to such holder instructions for either (I) completing the Letter of Transmittal over the internet by electronic means, including electronic signature, as instructed by the Paying Agent, including procedures for effecting the surrender of Certificates (or delivering such affidavit), or (II) requesting the Letter of Transmittal and such instructions to be mailed to such holder as provided in the immediately preceding clause (A). The Paying Agent shall, no later than the later of (i) the Business Day after the Closing Date and (ii) two (2) Business Days after receipt of a Certificate (only to the extent such Company Stock is represented by a Certificate) (or of an affidavit and agreement of indemnification, if any, as specified in Section 2.19), together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent may reasonably require Paying Agent
(c) As promptly as practicable following the Agreement Date and in connection therewith) at least three any event not later than five (35) Business Days prior thereafter, the Company shall provide to each holder of Options that are outstanding as of such date (A) an option termination agreement substantially in the form attached as Exhibit D (an “Option Termination Agreement”) and instructions for completing, executing and returning such Option Termination Agreement to the Closing Date, Company in exchange for the applicable portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that did not receive 2.7, together with (B) any written notice required to be delivered in connection with the transactions contemplated hereby to such portion of the Total Consideration holder pursuant to the preceding clause Stock Option Plan under which such Option was granted and (A)C) written notice that such holder will be entitled to his or her applicable share of the Merger Consideration for any Options that are outstanding immediately prior to the Closing, but only if the holder delivers a duly executed and completed Option Termination Agreement to the Company. With respect to a holder of Exchanged Options, Parent shall, no later than three the later of (3i) the Closing Date and (ii) two (2) Business Days after receipt of a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal an Option Termination Agreement duly completed and validly executed in accordance with the instructions thereto and any customary tax forms that thereto, cause the Exchange Agent Company or the payroll service provider designated by the Company, as the case may reasonably require in connection therewith)be, issue to the deliver to such holder of Exchanged Options the cash amount such Certificate (or any Company Stock not represented by a Certificate) holder has the portion of the Total Consideration with respect right to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted receive pursuant to Section 3.01(a2.7.
(d) (after giving effect Each Former Holder of Company Capital Stock or Exchanged Options shall also be entitled to Section 3.01(d)) in accordance with the Ownership Allocation as set forth any amounts that may be payable in the Spreadsheetfuture in respect of his, electronically through book entry-deliveryher or its shares of Company Capital Stock or Exchanged Options from the Adjustment Escrow Fund and from the Indemnification Escrow Fund as provided in this Agreement and the Escrow Agreement, at the respective times and subject to the terms and conditions specified herein and therein. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion accrued for the benefit of the Total 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 represented shares holders of Company Capital Stock (other than for or Exchanged Options on the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Merger Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing Date, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Parent has appointed American Stock Transfer & Trust Company (the “Exchange Agent”) to act as for the exchange agent purpose of exchanging for the Merger Consideration certificates representing shares of Company Stock (the “Certificates”), in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract accordance with the Exchange Agent prior Agreement, a copy of which is attached hereto as Exhibit B. At the Effective Time, Parent shall provide to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01irrevocable instructions, a letter of transmittal in the form attached hereto as Exhibit D C, with respect to the issuance of the Merger Consideration upon surrender of Certificates and properly completed Letters of Transmittal. Promptly after the Effective Time, and in any event within two Business Days thereafter, the Exchange Agent will send, to each holder of Company Stock at the Effective Time, in accordance with the list which was provided by the Company to Parent concurrently with this Agreement (the “Shareholders List”), a letter of transmittal, which will include Form W-8 and W-9 (the “Letter of Transmittal”) in the form attached hereto as Exhibit D. The Letter of Transmittal shall be sent to Company Stockholders in complete reliance on the Shareholders List and instructions for use Parent shall not take any action to confirm its accuracy. Parent shall have no liability with respect to incorrect addresses listed on the Shareholders List, and all liability thereof shall be borne by the Company.
(b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a Certificate, together with a properly completed Letter of Transmittal (including the Form W-8 or W-9, as applicable), the Merger Consideration in effecting respect of each share of Company Stock represented by such Certificate. The shares of Parent Common Stock constituting the surrender of the certificates evidencing such Company Stock, Merger Consideration shall be issued in physical certificates, which shall carry a legend in substantially the following form: "THE SHARES EVIDENCED HEREBY WERE ISSUED IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY ONLY BE TRANSFERRED (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (II) IN A TRANSACTION EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT, AND IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES." Until so surrendered or electronic formtransferred, as the case may be (be, each Certificate shall represent after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive such Merger Consideration upon surrendering the Certificate and a fully completed Letter of Transmittal of the holder of such Certificate. To the extent a holder of shares of Company Stock fails to deliver to the Exchange Agent a complete Form W-9 or W-8, as applicable, such holder shall be required, as a condition to receiving the Merger Consideration, to deposit with the Exchange Agent an amount equal in cash to the withholding liability applicable portion of Total to the Merger Consideration payable to such holder. The Exchange Agent , which amount shall be determined by Parent.
(Ac) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a No portion of the Total Merger Consideration pursuant shall be paid to Section 3.01 that has delivered a anyone but the Person in whose name the surrendered Certificate is registered.
(only to the extent such Company Stock is represented by a Certificated) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following After the Effective Time, with respect to any holder there shall be no further registration of record transfers of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 immediately prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and Time. If, after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as provided for the Merger Consideration in accordance with the procedures set forth in this Section 3.04(aArticle 2; provided that in no event shall the Merger Consideration exceed 10,562,895 shares of Parent Common Stock (reflecting the Reverse Split).
(be) No dividends or other distributions declared or Any portion of the Merger Consideration made after the Effective Time with respect available to the Acquiror Common Exchange Agent pursuant to Section 2.03(a) that remains unclaimed by the holders of Company Stock with a record date six months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such shares for the Merger Consideration in accordance with this Section 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Company Stock. Notwithstanding the foregoing, Parent shall not be liable to any holder of Company Stock for any amounts properly paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of Company Holders three (3) Stock two years after the Effective Time (or such earlier date, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(df) If No dividends or other distributions with respect to Parent Common Stock constituting part of the Merger Consideration shall be paid to the holder of any Certificate Certificates not surrendered until such Certificates are surrendered or transferred, as the case may be, together with all other required documents 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 shares of Parent Common Stock have been lostregistered, stolen (i) at the time of such surrender or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agenttransfer, the posting by such Person amount of all dividends or other distributions with a bond, in such reasonable amount as record date after the Company may direct, as indemnity against any claim that may be made against it Effective Time previously paid with respect to such Certificateshares, and (ii) at the appropriate payment date, the Exchange Agent shall issueamount of dividends or other distributions payable with respect to such shares with a record date after the Effective Time and prior to surrender or transfer, in exchange for such lost, stolen and with a payment date subsequent to surrender or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementtransfer.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) The following procedures shall apply to Elections made pursuant to Section 2.02(a)(i):
(i) Parent shall prepare a form reasonably acceptable to the Company (the “Election Form”), which shall be mailed by the Company to record holders of Company Stock and holders of Vested Company Stock Options and Director RSUs (as such terms are defined in Section 2.04) so as to permit those holders to exercise their right to make an Election prior to the Election Deadline and which shall specify, among other things, the Election Deadline and the consequences of failing to meet the Election Deadline.
(ii) Prior to the Closing Mailing Date, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for (i) receiving Elections and exchanging for the applicable Company Cash Consideration and New Charter Merger Consideration (in respect of the applicable Company Stock Merger Consideration that shall be deemed to act be automatically surrendered for exchange upon the Second Company Merger Effective Time) (as the exchange agent well as cash in the First Merger; provided, however, that Acquiror shall afford the lieu of fractional shares of New Charter Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record Stock as specified in Section 2.07) (A) certificates representing shares of Company Stock entitled to receive a portion of (the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of TransmittalCompany Certificates”) and instructions (B) uncertificated shares of Company Stock (the “Company Uncertificated Shares”), and (ii) exchanging for use the Parent Merger Consideration and cash in effecting lieu of fractional shares of New Charter Company Stock as specified in Section 2.07 (A) certificates representing shares of Parent Class A Common Stock (the surrender of “Parent Certificates” and, together with the certificates evidencing such Company StockCertificates, in physical or electronic form, as the case may be (the “Certificates”) and (B) uncertificated shares of Parent Class A Common Stock (the “Parent Uncertificated Shares” and, together with the Company Uncertificated Shares, the “Uncertificated Shares”).
(iii) The Company shall mail or cause to be mailed or delivered, as applicable, not less than 20 Business Days prior to the extent any such anticipated Election Deadline (the “Mailing Date”) an Election Form to record holders of Company Stock is represented by a Certificate, in exchange for as of the right close of business on the tenth (10th) Business Day prior to receive the applicable portion of Total Consideration payable to such holderMailing Date (the “Election Form Record Date”). The Company shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders or beneficial owners of Company Stock during the period following the Election Form Record Date and prior to the Election Deadline.
(iv) Any Election shall have been made properly only if the Exchange Agent shall have received, by the Election Deadline, an Election Form properly completed and signed and accompanied by Company Certificates to which such Election Form relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company and, in the case of Company Uncertificated Shares, any additional documents specified in the procedures set forth in the Election Form. As used herein, unless otherwise agreed in advance by the Company and Parent, “Election Deadline” means 5:00 p.m. local time (Ain the city in which the principal office of the Exchange Agent is located) on the Closing Date, issue to each holder of record of date that Parent and the Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate shall agree is five (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (35) Business Days prior to the expected Closing Date. The Company and Parent shall issue a press release reasonably satisfactory to each of them announcing the anticipated date of the Election Deadline not more than 20 Business Days before, and at least five Business Days prior to, the portion of Election Deadline. If the Total Consideration with respect Closing is delayed to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and subsequent date, the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest Election Deadline shall be paid or similarly delayed to a subsequent date (which shall accrue on any portion of be the Total 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 fifth Business Day prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(dClosing Date) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or and Parent shall cooperate to promptly publicly announce such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free rescheduled Election Deadline and clear of any claims or interest of any Person previously entitled theretoClosing.
(d) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Charter Communications, Inc. /Mo/)
Surrender and Payment. (a) Prior Parent will appoint U.S. Bank National Association to the Closing Date, Acquiror shall, at its sole cost and expense, appoint an exchange act as payment agent reasonably acceptable to the Company (the “Exchange Payment Agent”) for the purpose of exchanging certificates representing the shares of Company Stock (the “Certificates”) for the Merger Consideration. Immediately following the Effective Time, Parent will make available the Merger Consideration, less any amounts to act be paid to holders of Company Stock Options pursuant to Section 2.05 (which shall be paid by Parent to the Surviving Corporation as promptly as practicable and in any event immediately following the exchange agent Effective Time) less any amounts withheld pursuant to Section 2.09, to be paid in respect of the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract Certificates in accordance with the Exchange provisions set forth in this Article 2. Promptly following the Effective Time, Parent or the Payment Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each every holder of record of Company Preferred Stock entitled that was issued and outstanding immediately prior to receive the Effective Time and that has not previously delivered its Certificates together with a portion of the Total Consideration pursuant to Section 3.01, a properly completed and duly executed letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”), in each case to the mailing address (or pursuant to the other delivery instructions) set forth in the Closing Payment Schedule, (x) a Letter of Transmittal and (y) instructions for use of such Letter of Transmittal in effecting the surrender of the certificates evidencing such certificates.
(b) Each holder of outstanding Company Stock, in physical or electronic form, as the case may be (the “Certificates”), to the extent any such Company Preferred Stock is represented by a Certificate, in exchange for that has been converted into the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate (only 2.03(a) will be entitled to receive, upon surrender to the extent such Company Stock is represented by Payment Agent of a Certificate) (, together with a properly completed Letter of Transmittal duly completed (which shall specify that the delivery shall be effected, and validly executed risk of loss and title shall pass, only upon proper delivery of the Certificate to the Payment Agent), the Allocated Portion, if any, payable for each share of Company Preferred Stock represented by such Certificate in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as procedures set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)this Article 2. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to from and after the Effective Time represented shares each such Certificate shall represent for all purposes only the right to receive the Allocated Portion, if any, payable for each share of Company Stock represented thereby.
(c) If any portion of the Merger Consideration is to be paid to a Person other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) Person in whose name the surrendered Certificate is registered, it shall be deemed from a condition to such payment that the Certificate 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 Payment Agent any transfer or other 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 Payment Agent that such Tax has been paid or is not payable.
(d) From and after the Effective Time, for all purposesthere shall be no further registration of transfers of shares of Company Stock. If, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the Allocated Portion, if any, provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(be) No dividends Any portion of the Merger Consideration made available to the Payment Agent pursuant to Section 2.11(a) (and any interest or other distributions declared or made after income earned thereon) that remains unclaimed by the Effective Time with respect to the Acquiror Common holders of shares of Company Stock with a record date sixty (60) Business Days after the Effective Time shall be paid returned to the Parent, upon demand, and any such holder who has not exchanged shares 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 Merger Consideration payable in respect 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, and (ii) at the appropriate payment date, the amount of dividends or other distributions, Company Stock in accordance with a record date after the Effective Time but this Section 2.11 prior to surrender and a that time shall thereafter look only to Parent for payment date occurring after surrender, of the Allocated Portion payable with in respect to of such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by Company Stock without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Holders three (3) years after the Effective Time (Stock for any amount paid to a public official pursuant to applicable abandoned property, escheat or such earlier date, immediately similar laws. Immediately prior to such time when the amounts remaining unclaimed by holders of shares of Company Stock would otherwise escheat to or become property of any Governmental Authority) , such unclaimed amounts shall become, to the extent permitted by applicable Applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person Persons previously entitled thereto.
(df) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a Any portion of the Total Merger Consideration made available to the Payment Agent pursuant to Section 3.032.11(a) to pay for any Dissenting Shares shall be returned to Parent, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)upon demand.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Affymetrix Inc)
Surrender and Payment. (a) Prior to At the Closing DateClosing, Acquiror shallthe Company, at its sole cost Tracor and expense, appoint the Holder Representative shall enter into an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract Agent Agreement with the Exchange Agent prior for the purpose of effecting the payments to executionHolders contemplated hereby. Such agreement shall provide, and shall accept among other things, that promptly after the Company’s reasonable comments thereto. Prior to the Closing DateEffective Time, Acquiror shall cause the Exchange Agent to shall mail to each holder of record of Company Stock entitled to receive Holder a portion of notice that the Total Consideration pursuant to Section 3.01, Merger has become effective and a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates and Option Documents shall pass, only upon proper delivery of the Certificates and Option Documents to the Exchange Agent in accordance with the terms of delivery specified in such transmittal letter and shall be in such form attached hereto and have such other provisions as Exhibit D (a “Letter of Transmittal”Tracor and the Company may reasonably specify) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical Certificates and Option Documents for payment of the Per Share Amount of the Merger Consideration. Upon surrender of a Certificate or electronic form, as the case may be (the “Certificates”), Option Document to the extent any Exchange Agent, together with such Company Stock is represented by a Certificateletter of transmittal, in exchange for duly executed, the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock such Certificate or Option Document shall be entitled to receive a portion of therefor one or more cash payments included in the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed Merger Consideration, calculated in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing DateSection 2.10(e), the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate so surrendered shall forthwith be canceled; and (B) following the Effective Timeprovided, with respect to any holder of record however, that those Holders of Company Common Stock entitled to receive a portion listed in the Disclosure Schedule who have executed promissory note(s) in favor of the Total Consideration pursuant to Section 3.01 that did not receive such portion Company in connection with the acquisition of the Total Consideration pursuant their shares of Company Common Stock or are otherwise indebted to the preceding clause (A), no later than three (3) Business Days after receipt of a Certificate (only to the extent such Company 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 for withholding taxes or otherwise shall receive from the Exchange Agent may reasonably require in connection therewith), issue to the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion Per Share Amount for each of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion shares of the Total Consideration into which such Company Common Shares Stock owned by such Holder less the amount of principal and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(ainterest outstanding under such promissory note(s) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation or other indebtedness as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest Disclosure Schedule (which shall be paid or shall accrue on any portion deducted from the first payment of the Total Consideration payable upon surrender Per Share Amount) and the Exchange Agent shall in turn remit the amount 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 such principal and interest to the Effective Time represented shares of Company Stock (Surviving Corporation, which shall cancel such promissory note(s) or other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from such indebtedness. At and after the Effective Time, each Certificate and each Option Document shall be deemed for all purposes, corporate purposes to evidence only the right to receive the portion Per Share Amount of the Total Consideration. If after the Effective Time, any Certificate (or any Merger Consideration for each share of 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate or Option Document, and shall not evidence any interest in, or any right to exercise the rights of a Holder of, stock in accordance with the Surviving Corporation. No interest will be paid or accrued on the cash payable upon the surrender of Certificates or Option Documents except as otherwise provided in this Agreement.
(e) The provisions . If payment for any share of this Section 3.04 shall apply, mutatis mutandis, Company Common Stock or Company Stock Option is to Company Optionholders entitled be made to a portion Person other than the one in whose name the Certificate or Option Document surrendered for payment is registered or issued, it shall be a condition to such payment that such Certificate or Option Document be properly endorsed (or accompanied by an appropriate instrument of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed transfer) and accompanied by the Acquiror and the Company)evidence that any applicable stock transfer taxes have been paid or provided for.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Tracor Inc /De)
Surrender and Payment. (a) At the Effective Time, all Shares shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.08, each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of an Option (if any) shall cease to have any rights as a stockholder of the Company or a holder of Options.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford .
(c) As promptly as practicable following the Company the opportunity to review any proposed Contract with appointment of the Exchange Agent prior to executionand in any event not later than five Business Days thereafter, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to shall mail to each holder of record Company Common Stock instructions for effecting the surrender of Company Stock entitled to receive a Certificates in exchange for the applicable portion of the Total Merger Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be (the “Certificates”2.08(b), to the extent any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall shall, no later than the later of (Ai) on the Closing Date, issue to each holder Date or (ii) five Business Days after receipt of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company 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 other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior , pay to the Closing Date, the portion holder of the Total Consideration such Certificate a cash amount as provided in Section 2.08(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash 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 represented shares of Company Common Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.08(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.10.
(bd) No dividends [Intentionally Omitted]
(e) Each Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate 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 Stockholders on the Merger Consideration.
(f) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) 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 transfer or other distributions declared Tax required as a result of such payment to a Person other than the registered holder of such Certificate or made after the Effective Time with respect establish to the Acquiror Common Stock with a record date reasonable satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(g) Any portion of the Merger Consideration that remains unclaimed by the Stockholders six months after the Effective Time shall be returned to Parent, upon demand, and any such Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Parent for payment of the Merger 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 terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Stockholders 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 the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) Stockholders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably Parent shall select a Paying Agent mutually acceptable to the Company Company. Within two (2) business days after the “Exchange Agent”) to act as Closing, the exchange agent in the First Merger; provided, however, that Acquiror Paying Agent shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled a Certificate or Certificates, except Certificates representing Dissenting Shares and Certificates to receive a portion of be cancelled in accordance with Section 1.12(a), (collectively, the Total “Merger Consideration pursuant to Section 3.01Certificates”), (i) a letter of transmittal transmittal, in the form set forth in attached hereto as Exhibit D EXHIBIT H (a the “Letter of Transmittal”); and (ii) and instructions for use in effecting the surrender of the certificates 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, Merger Consideration Certificates in exchange for the right applicable portion of the Merger Consideration with respect to each share of Company Capital Stock represented by such Merger Consideration Certificates. Upon surrender of a Merger Consideration Certificate for cancellation to the Paying Agent (or an affidavit of lost stock certificate in the form attached to the Letter of Transmittal), together with such Letter of Transmittal, duly completed and validly executed, the holder of such Merger Consideration Certificate shall be entitled to receive in exchange therefore with respect to each share of Company Capital Stock represented by such Merger Consideration Certificate the applicable portion of Total the Merger Consideration. If issuance of the Merger Consideration payable is to be made to a person other than the person in whose name the Merger Consideration Certificate so surrendered is registered, it shall be a condition of such holderissuance that
(y) such Merger Consideration Certificate is presented to the Paying Agent, and (z) such Merger Consideration Certificate be accompanied by all documents required to evidence and effect such transfer. The Exchange Until surrendered as contemplated by this Section 1.14(a), each Merger Consideration Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender with respect to each share of Company Capital Stock represented by such Merger Consideration Certificate the applicable portion of the Merger Consideration. Notwithstanding the foregoing, stockholders that surrender a Merger Consideration Certificate to the Paying Agent for exchange, together with a duly executed Letter of Transmittal, at least two (2) business days prior to the Closing (the “Closing Payment Deadline”), shall (A) be entitled to receive on the Closing Date, issue via wire transfer of immediately available cash an amount equal to each holder of record of such Company Stock entitled to receive a portion Stockholder’s applicable share of the Total Merger Consideration paid at Closing (net of the applicable share of the Escrow Amount and the Securityholder’s Agent Fund) as set forth in the Payout Spreadsheet, in each case less any required withholding permitted by Section 1.16 and subject to adjustment pursuant to Section 3.01 that has delivered a Certificate (only 1.11. With respect to any stockholders who did not receive payment at the Closing pursuant to the extent such immediately preceding sentence, within three (3) business days of receipt of a Company Stock is represented Share Certificate for cancellation by a Certificate) (the Paying Agent, together with a Letter of Transmittal duly completed and validly executed executed, Parent shall cause the Paying Agent to pay to such holder an amount in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior cash equal to the Closing Date, consideration set forth in the portion Payout Spreadsheet in respect of the Total Consideration with respect to such Certificate (or any Company Stock not Shares formerly represented by a such Company Share Certificate, without interest, and such Company Share Certificate shall, upon such surrender, be cancelled.
(b) so surrendered and The Paying Agent shall pay the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Warrant Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant in cash to the preceding clause (A), no later than three (3) Business Days after receipt of a Certificate (only to the extent such Company 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation applicable parties as set forth in the SpreadsheetPayout Schedule provided by Parent.
(c) Subject to Section 1.15, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 remains undistributed to the Effective Time represented shares of Company Stock (other than Holders for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the Acquiror Common Stock with a record date 180 calendar days after the Effective Time shall be paid delivered to the holder of Parent upon demand and 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 Holder that has not previously complied with respect this Section 1.14 shall thereafter look only to such shares of Acquiror 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 a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, the posting by such Person of a bond, in such reasonable amount as the Company may directParent, as indemnity against any an unsecured creditor, for payment of its 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 Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a its respective portion of the Total Consideration Merger Consideration. Neither Parent nor the Surviving Corporation shall be liable to any Effective Time Holder for any cash amounts, delivered to any public official pursuant to Section 3.03any applicable abandoned property, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)escheat or similar law.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “"Exchange Agent”") for the purpose of exchanging certificates representing shares of Common Stock (the "Certificates") 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 act as the exchange agent in Company. Prior to the First Merger; providedEffective Time, however, that Acquiror Parent shall afford the Company the opportunity deposit or cause to review any proposed Contract be deposited with the Exchange Agent prior in a separate fund established for the benefit of the holders of shares of Common Stock, cash sufficient to executionpay the aggregate Merger Consideration required to be paid for all of the Certificates at the Effective Time. For purposes of determining the Merger Consideration to be so deposited, Parent shall assume that no holder of shares of Common Stock will perfect appraisal rights with respect to such shares. 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 accept be invested by the Company’s reasonable comments theretoExchange Agent as directed by Parent or the Surviving Corporation in: (A) direct obligations of, or obligations the 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 xxxxxxition thereof not in excess of 90 days or (D) demand deposits with any United States Bank. Prior The earnings and interest thereon shall be paid to Parent or as Parent directs. As soon as practicable (but not more than three Business Days) after the Closing DateEffective Time, Acquiror Parent shall send, or shall cause the Exchange Agent to mail send, to each holder of record of Company shares of Common Stock entitled to receive a portion of at the Total Consideration pursuant to Section 3.01Effective Time, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of a Certificate in exchange for payment of the certificates evidencing Merger Consideration (which shall (i) be in a form reasonably acceptable to each of Parent and the Company and (ii) specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates to the Exchange Agent) for use in such Company Stockexchange.
(b) Each holder of shares of Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, the Merger Consideration in physical respect of the Common Stock represented by a Certificate. Such payment of the Merger Consideration shall be sent to such holder of shares of Common Stock promptly after receipt of such Certificate and letter of transmittal by the Exchange Agent. Until so surrendered or electronic formtransferred, as the case may be (be, each such Certificate shall represent after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall Merger Consideration.
(Ac) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a If any portion of the Total Merger Consideration pursuant is to Section 3.01 be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that has delivered a (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (only ii) the Person requesting such payment shall pay to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the Closing Date, the portion satisfaction of the Total Consideration with respect to Exchange Agent that such Certificate tax has been paid or is not payable.
(or any Company Stock not represented by a Certificated) so surrendered and the Certificate shall forthwith be canceled; and (B) following After the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest there shall be paid or shall accrue on any portion no further registration of the Total Consideration payable upon surrender transfers 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and Common Stock. If, after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(be) No dividends or other distributions declared or made after Any portion of the Effective Time Merger Consideration deposited with respect the Exchange Agent pursuant to Section 2.04(a) that remains unclaimed by the Acquiror holders of shares of Common Stock with a record date twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Common Stock for the Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Common Stock for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) holders of shares of Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Lawlaw, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(df) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Merger Consideration deposited with respect to such Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.032.04(a) to pay for shares for which appraisal rights have been perfected shall be returned to the Surviving Corporation, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)upon demand.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (V F Corp)
Surrender and Payment. (a) At the Effective Time, all Shares and all Options outstanding immediately prior to the Effective Time (but after the effective time of the Taxable Distribution Transaction) shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.10, each Stockholder and each Optionholder shall cease to have any rights as a stockholder or an optionholder of the Company.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided.
(c) As promptly as practicable following the Closing Date and in any event no later than thirty (30) calendar days thereafter, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Stockholder a letter of transmittal in substantially the form attached hereto as Exhibit D B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company StockStockholder’s certificate formerly representing any Shares (each, in physical or electronic form, as the case may be (the a “CertificatesCertificate”), to the extent any such Company Stock is represented by a Certificate, ) in exchange for the right to receive the applicable portion of Total Merger Consideration payable pursuant to such holderSection 2.08(b). The Exchange Agent shall shall, as soon as practicable thereafter, but no later than ten (A10) on the Closing Date, issue to each holder Business Days after receipt of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior , pay to the Closing Date, the portion holder of the Total Consideration such Certificate a cash amount as provided in Section 2.08(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash 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 (but after the effective time of the Taxable Distribution Transaction) represented shares of Company Stock Shares (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.08(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.11.
(bd) No dividends As promptly as practicable following the Closing Date and in any event no later than thirty (30) calendar days thereafter, the Company shall mail to each In-Money Optionholder an option termination agreement substantially in the form attached as Exhibit C (an “Option Termination Agreement”) and instructions for completing, executing and returning such Option Termination Agreement in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.09. With respect to Company Entity Optionholders, Parent shall cause the Surviving Corporation or its designated payroll service provider to deliver to such Company Entity Optionholder the cash amount such Company Entity Optionholder has the right to receive pursuant to Section 2.09(a) on the next regularly scheduled payroll date that is at least ten (10) Business Days after Parent’s receipt of an Option Termination Agreement with respect to such Optionholder duly completed and validly executed in accordance with the instructions thereto and any other distributions declared customary documents that Parent may reasonably require in connection therewith (collectively, the “Option Termination Documents”). With respect to each Excluded Entity Optionholder, the Excluded Entity that employs such Excluded Entity Optionholder shall deliver or made cause its designated payroll service provider to deliver to such Excluded Entity Optionholder the cash amount such Excluded Entity Optionholder has the right to receive pursuant to Section 2.09(a) on the next regularly scheduled payroll date that is at least ten (10) Business Days after Parent’s receipt of the Effective Time Option Termination Documents. With respect to a non-employee Optionholder who is an In-Money Optionholder, the Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) two (2) Business Days after receipt of the Option Termination Documents, pay to such Optionholder a cash amount as provided in Section 2.09(a) with respect to the Acquiror Common Stock with In-Money Options in respect of which the Option Termination Agreement was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon delivery of any Option Termination Agreement.
(e) Each Stockholder and In-Money Optionholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate, and in respect of the In-Money Options cancelled pursuant to Section 2.09(a), from the Escrow Funds as provided in this Agreement and the Escrow Agreement and on account of any 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 Stockholders or the In-Money Optionholders on the Merger Consideration.
(f) If any portion of the Merger Consideration is to be paid to a record date Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) 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 transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(g) Any portion of the Merger Consideration that remains unclaimed by the Stockholders and Optionholders twelve (12) months after the Effective Time shall be returned to Parent, upon demand at the discretion of Parent, and any such Stockholder or Optionholder who has not exchanged Certificates or delivered Option Termination Agreements for the Merger Consideration in accordance with this Section 2.11 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Funds shall be held and distributed to the Persons entitled thereto in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of any Post-Closing Adjustment to which the Stockholders 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 or In-Money Options for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three Stockholders or Optionholders two (32) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(dh) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Parent, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Aegion Corp)
Surrender and Payment. (a) Prior At the Effective Time, each holder of shares of Xxxxxxxxxxx.xxx Common Stock and CMJ Common Stock that have been converted into a right to receive the Merger Consideration, upon surrender to XXX.xxx of a Certificate, shall be entitled to receive the Merger Consideration in respect of the shares of common stock represented by such Certificate, subject to the escrow arrangements described in Section 1.3(b) and in the Escrow Agreement. Until so surrendered, each such Certificate shall, after the Effective Time, represent for all purposes only the right to receive such Merger Consideration. Notwithstanding the foregoing, no stockholder of CMJ or Xxxxxxxxxxx.xxx shall be entitled to receive any certificates representing XXX.xxx Common Stock unless and until such stockholders shall have executed and delivered to XXX.xxx the Stockholders Agreement (as hereinafter defined).
(b) Notwithstanding the foregoing paragraph (a), a number of shares of XXX.xxx Common Stock (and, in the case of the Xxxxxxxx Options, option certificates representing the right to acquire 30% of the underlying shares of XXX.xxx Common Stock) equal to 30% of each of the Xxxxxxxxxxx.xxx Merger Consideration and the CMJ Merger Consideration (without giving effect to any potential adjustment to the Merger Consideration pursuant to Sections 1.5(b), (d) or (e) hereof) issued on the Closing Date (the "Escrow Fund") in the name of the respective stockholders and optionholders of Xxxxxxxxxxx.xxx and CMJ entitled thereto, shall be delivered to The Chase Manhattan Bank, a New York State Chartered Bank (the "Escrow Agent") on the Closing Date, Acquiror shalltogether with executed but undated stock powers and other proper instruments of assignments signed by such stockholders and optionholders transferring to XXX.xxx all of such stockholders' and optionholders' rights, at its sole cost title and expense, appoint an exchange agent reasonably acceptable interest in and to the Company subject shares of, and options to purchase, XXX.xxx Common Stock, to be held in accordance with the terms of the escrow agreement (the “Exchange Agent”"Escrow Agreement") attached hereto as Exhibit A. The Escrow Fund shall be maintained as security for the possible adjustments to act as the exchange agent in the First MergerMerger Consideration pursuant to Sections 1.5(b), (d) and (e) hereof; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior notwithstanding anything to the Closing Datecontrary herein, Acquiror shall cause in the Exchange Agent event that any adjustments to mail to each holder of record of Company Stock entitled to receive a portion of the Total Xxxxxxxxxxx.xxx Merger Consideration or the CMJ Merger Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”1.5(b) and instructions for use in effecting (d) hereof exceed the surrender amount of the certificates evidencing such Company Stock, in physical Xxxxxxxxxxx.xxx Merger Consideration or electronic form, CMJ Merger Consideration (as the case may be) being held in the Escrow Fund, such Merger Consideration shall, nevertheless, be (reduced by the “Certificates”)amount of such excess; provided, further, that the foregoing proviso shall not apply to any adjustment required by Section 1.5(d) hereof to the extent that such adjustment relates to or arises out of a breach of any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed representations or warranties contained in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing DateSections 3.15, the portion of the Total Consideration with respect to such Certificate (3.17, 3.18, 3.20, 4.15, 4.17, 4.18 or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock4.20 hereof.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Merger Consideration pursuant is to Section 3.03, with be registered in the Company Optionholders being required to deliver an option cancellation agreement in lieu 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 of the Merger Consideration 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 XXX.xxx any transfer or other taxes required as a form result of such registration in the name of a Person other than the registered holder of such Certificate or establish to be mutually agreed by the Acquiror reasonable satisfaction of XXX.xxx that such tax has been paid or is not payable. The XXX.xxx Common Stock issued to the stockholders of Xxxxxxxxxxx.xxx and CMJ entitled thereto, the Xxxxxxxx Options and the Company).
(f) The provisions shares of XXX.xxx Common Stock issuable upon exercise of the Xxxxxxxx Option shall be subject to the restrictions on transfer set forth in the Investment Letter, and the certificates evidencing such XXX.xxx Common Stock and options shall bear the restrictive legends set forth in the Investment Letter. For purposes of this Section 3.04 shall applyAgreement, mutatis mutandis"Person" means an individual, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03corporation, with the Noteholders being required to deliver their applicable Payoff Lettera 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.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost Parent shall appoint a bank or trust company designated by Parent and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) and shall cause to act be deposited with the Exchange Agent, in trust for the benefit of the holders of Company Common Stock and the Performance Units, certificates representing the shares of Parent Common Stock and an amount of cash in U.S. dollars sufficient to be issued and paid pursuant to Sections 2.1, 2.3 and 2.6(d), payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) or non-certificated Company Common Stock represented by book-entry (“Book-Entry Shares”) pursuant to the provisions of this Article II. Following the Effective Time, Parent agrees to make available to the Exchange Agent, from time to time as the exchange agent needed, cash in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity U.S. dollars sufficient to review pay any proposed Contract dividends and other distributions pursuant to Section 2.2(f). Any cash and certificates representing Parent Common Stock deposited with the Exchange Agent prior (including the amount of any dividends or other distributions payable with respect thereto and such cash in lieu of fractional shares to executionbe paid pursuant to Section 2.3) shall be referred to in this Agreement as the “Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 2.1 out of the Exchange Fund. Except as contemplated by Section 2.3, the Exchange Fund shall not be used for any other purpose. As soon as reasonably practicable after the Effective Time and shall accept in any event not later than the Company’s reasonable comments thereto. Prior to second business day following the Closing DateEffective Time, Acquiror shall Parent will cause the Exchange Agent to mail send to each holder of record of shares of Company Common Stock, whose Company Common Stock entitled to receive a portion of was converted into the Total Merger Consideration pursuant to Section 3.012.1, (i) a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Exchange Agent) in such form attached hereto as Exhibit D Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Exchange Agent, and (a “Letter of Transmittal”ii) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, Certificates (or effective affidavits of loss in physical lieu thereof) or electronic form, as the case may be (the “Certificates”), to the extent any such Company Stock is represented by a Certificate, Book-Entry Shares in exchange for the Merger Consideration. Exchange of any Book-Entry Shares shall be effected in accordance with Parent’s customary procedures with respect to securities represented by book entry.
(b) Each holder of shares of Company Common Stock that have been converted into a right to receive the applicable portion of Total Consideration payable Merger Consideration, upon surrender to such holder. The the Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the extent such Company Stock is represented by a Certificate) (Exchange Agent, together with a Letter properly completed letter of Transmittal transmittal, duly executed and completed and validly executed in accordance with the instructions thereto thereto, and customary tax forms that such other documents as may reasonably be required by the Exchange Agent may reasonably require Agent, will be entitled to receive in connection therewithexchange therefor (i) at least three one or more shares of Parent Common Stock (3which shall be in non-certificated book-entry form unless a physical certificate is requested) Business Days prior representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.1 (after taking into account all shares of Company Common Stock then held by such holder) and (ii) a check in the amount equal to the Closing Date, the cash portion of the Total Merger Consideration with respect to that such Certificate (or any Company Stock not represented by a Certificate) so surrendered and holder has the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled right to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion 2.1 and this Article II, including cash payable in lieu of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted fractional shares pursuant to Section 3.01(a2.3 and dividends and other distributions pursuant to Section 2.2(f) (after giving effect to Section 3.01(dless any required Tax withholding)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or shall accrue accrued on any portion Merger Consideration, cash in lieu of the Total Consideration fractional shares or on any unpaid dividends and distributions payable upon surrender to holders of any Certificate (or any Company Stock not represented by a Certificate)Certificates. Until so surrendered, each outstanding such Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive the portion of the Total such Merger Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(d) If any cash payment is to be made to a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall have been lost, stolen or destroyed, upon be a condition of such payment that the Person requesting such payment shall pay any transfer Taxes required by reason of the making of an affidavit such cash payment to a Person other than the registered holder of loss and indemnity by the Person claiming such surrendered Certificate or shall establish to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, the posting by such Person satisfaction 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 Certificate, the Exchange Agent shall issue, in exchange for that such lost, stolen Tax has been paid or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a is not payable. If any portion of the Total Merger Consideration pursuant is to Section 3.03, with be registered in the Company Optionholders being required to deliver an option cancellation agreement in lieu 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 Taxes required as a form result of such registration in the name of a Person other than the registered holder of such Certificate or establish to be mutually agreed by the Acquiror and satisfaction of the Company).
(f) The provisions Exchange Agent that 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, group (as such term is used in Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion 13 of the Total Consideration pursuant to Section 3.03Exchange Act) or organization, with the Noteholders being required to deliver their applicable Payoff Letterincluding a Governmental Authority, and any permitted successors and assigns of such Person.
Appears in 1 contract
Samples: Merger Agreement (Washington Group International Inc)
Surrender and Payment. (ai) Prior Each holder of Shares that have been converted into the right to receive the Securities and/or cash, upon surrender of a certificate or certificates representing such Shares, together with a duly executed letter of transmittal, will be entitled to receive the Securities and/or cash payable in respect of such Shares, which Securities and/or cash shall be delivered upon such surrender, whether at the Closing or at any time thereafter, subject to applicable escheat laws.
(ii) All certificates representing Shares outstanding prior to the Closing Date, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable Date shall continue to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder evidence ownership of record shares of Company Ordinary Common Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company or Class B Common Stock, in physical or electronic form, as the case may be, until the Effective Time. At the Effective Time, each share of Ordinary Common Stock or Class B Common Stock shall, by virtue of the Merger and without any action on the part of the holder thereof, be (the “Certificates”)converted into, to the extent any such Company Stock is represented by a Certificate, and shall be canceled in exchange for for, the right to receive Securities and/or cash in the applicable portion of Total Consideration payable to such holderamount provided for herein. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only All certificates representing Shares outstanding immediately prior to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed Effective Time shall be presented and validly executed shall be canceled and exchanged for the Securities and/or cash provided for, and in accordance with the instructions thereto and customary tax forms that procedures set forth, in this Agreement. The Securities and/or cash delivered upon the Exchange Agent may reasonably require surrender for exchange of the Shares in connection therewith) at least three (3) Business Days accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and, after the Effective Time, there shall be no further registration or transfers of Shares outstanding prior to the Closing Date, the portion .
(iii) No fractional Securities shall be issued upon conversion of the Total Consideration with respect Shares. In lieu of any fractional Security to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to which any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant Shares would otherwise be entitled, Xxxxxxx shall round upward to the preceding clause (A), no later than three (3) Business Days after receipt of a Certificate (only to nearest whole Security or pay the extent such Company 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 the holder cash equivalent of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Sharesfractional Security, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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)at Xxxxxxx'x sole option.
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Concurrently with the Effective Time, Parent shall make available to act as the exchange agent Exchange Agent the aggregate Merger Consideration to be paid in respect of the First Merger; providedCertificates and the Uncertificated Shares (but not, howeverfor the avoidance of doubt, that Acquiror shall afford the In-the-Money Company Stock Option Merger Consideration or the Company the opportunity RSU Merger Consideration to review any proposed Contract be paid in respect of In-the-Money Company Stock Options and Company RSUs, respectively, which will be paid in accordance with Section 3.05). All cash deposited with the Exchange Agent prior to executionmay not be used for any purpose not provided in this Agreement, or as otherwise agreed by the Company and shall accept Parent before the Company’s reasonable comments theretoEffective Time. Prior Any income from investment of the cash deposited with the Exchange Agent will be payable to the Closing DateSurviving Corporation or as otherwise directed by Parent. Promptly after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), Acquiror Parent shall cause the Exchange Agent to mail send to each holder of record shares of Company Stock entitled immediately prior to receive a portion the Effective Time (other than the Company, Parent, Merger Subsidiary, any Subsidiary of the Total Consideration pursuant to Section 3.01Company, Parent or Merger Subsidiary, or holders of Dissenting Shares who have not subsequently withdrawn or lost their rights of appraisal) a letter of transmittal transmittal, in form and substance reasonably acceptable to the form attached hereto as Exhibit D (a “Letter of Transmittal”) Surviving Corporation, 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 Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in effecting such exchange.
(b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, promptly following (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 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 Merger Consideration in respect of the certificates evidencing such Company Stock, in physical Stock represented by a Certificate or electronic formUncertificated Share. Until so surrendered or transferred, as the case may be (the “Certificates”)be, to the extent any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate Uncertificated Share shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed represent from and after the Effective Time, Time for all purposes, to evidence purposes only the right to receive such Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of Certificates or Uncertificated Shares. All cash paid upon the surrender of Certificate and Uncertificated Shares in accordance with the terms herein shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares formerly represented by such Certificate and Uncertificated Shares.
(c) If any portion of the Total ConsiderationMerger 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 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 or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay in advance to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. If If, after the Effective Time, any Certificate (Certificates or any Company Stock not represented by a Certificate) is Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, it they shall be canceled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 3.
(be) No dividends or other distributions declared or Any portion of the Merger Consideration made after the Effective Time with respect available to the Acquiror Common Exchange Agent pursuant to Section 3.03(a) that remains unclaimed by the holders of shares of Company Stock with a record date one year after the Effective Time shall be returned to Parent or delivered to the Surviving Corporation, as directed by Parent, upon demand, and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this Section 3.03 prior to that time shall thereafter look only to the Parent and the Surviving Corporation as general creditors thereof for payment of the Merger Consideration, in respect of such shares without any interest thereon. Notwithstanding the foregoing, none of Parent, the Surviving Corporation or the Exchange Agent shall be liable to any holder of shares of Company Stock for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders three (3) years after the Effective Time (or such earlier date, Stock immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(df) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Parent upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Telular Corp)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an American Stock Transfer & Trust Company as the exchange agent reasonably acceptable (or such other nationally recognized exchange agent agreed to between the Company parties) (the “Exchange Agent”) to act as agent for the exchange Company’s stockholders who shall become entitled to receive funds pursuant to this Agreement, including as agent in for the First Merger; purpose of exchanging for the Merger Consideration, certificates representing shares of Company Common Stock (the 15 “Certificates;” provided, however, that Acquiror any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock). At or prior to the Effective Time, Parent shall afford the Company the opportunity deposit, or shall cause to review any proposed Contract be deposited, with the Exchange Agent prior the Aggregate Merger Consideration (the “Payment Fund”). To the extent such fund diminishes for any reason below the level required to executionmake prompt payment of the Merger Consideration, Parent and the Surviving Corporation shall accept promptly replace or restore, or cause to be replaced or restored, the Company’s reasonable comments theretolost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. Prior to the Closing Date, Acquiror The Payment Fund shall cause be invested by the Exchange Agent to mail to each holder as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Merger Consideration payable hereunder, and following any losses Parent shall promptly provide additional funds to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 therewiththe amount of any such losses, (ii) at least three no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (3iii) Business Days prior to such investments shall be in short-term obligations of the Closing DateUnited States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the portion of the Total Consideration United States. Any and all interest or other amounts earned with respect to such Certificate funds shall become part of the Payment Fund, and any amounts in excess of the amounts payable hereunder shall be promptly returned to either Parent or the Surviving Corporation. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (or any and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following payment of the Merger Consideration in respect of such shares. Promptly after the Effective Time, with respect to and in any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant to the preceding clause (A), event no later than three (3) Business Days after receipt the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Common Stock at the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.03(a) a Certificate (only letter of transmittal and instructions in forms reasonably satisfactory to the extent Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent for use in such exchange. Each holder of shares of Company Common Stock is that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the shares of Company Common Stock represented by a Certificate, promptly, upon (i) (surrender to the Exchange Agent of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with letter of transmittal and such other documents as may reasonably be requested by the instructions thereto and any customary tax forms that Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably require request) in connection therewith)the case of a book-entry transfer of shares of Company Common Stock, issue and, in each case, delivery to the holder Exchange Agent of such Certificate (or any Company Stock not represented other documents as may reasonably be requested by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)Agent. Until so surrenderedsurrendered or transferred, each outstanding such Certificate (or any Company Stock not represented by a Certificate) that prior to shall represent after the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence purposes only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.Merger
Appears in 1 contract
Samples: Merger Agreement (Lionbridge Technologies Inc /De/)
Surrender and Payment. (a) Prior Upon the delivery to the Closing Date, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder Parent of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in a form mutually agreed to by Parent and the form attached hereto as Exhibit D Members (a the “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and such other customary tax forms that the Exchange Agent documents as may reasonably require in connection therewith) at least three (3) Business Days prior be required pursuant to the Closing Datesuch instructions, the Member for which such Letter of Transmittal is associated shall be entitled to receive in exchange thereof the then-applicable portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented Merger Consideration, as determined by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective TimeSection 2.07, with respect after giving effect to any holder of record of Company Stock entitled to receive a portion of Tax withholdings or deductions required by Applicable Law.
(b) Parent or the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred SharesSurviving Company, as applicable, have been converted shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to Section 3.01(a) (after giving effect this Agreement to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by Person who was a Certificate). Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that Member immediately prior to the Effective Time represented shares such amounts as the Members and the Parent or the Surviving Company mutually agree that the Parent or the Surviving Company is required to deduct and withhold with respect to the making of Company Stock such payment under the Code, or any provision of state, local, or foreign tax law. To the extent that amounts are so withheld by Parent or the Surviving Company, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Member in respect of which or whom such deduction and withholding was made by Parent or the Surviving Company.
(other than for c) All Merger Consideration paid or payable in accordance with the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) terms hereof shall be deemed to have been paid or payable in full satisfaction of all rights pertaining to the Membership Interests, and from and after the Effective Time, for all purposes, to evidence only there shall be no further creation or transfers of Membership Interests on the right to receive the portion books of the Total ConsiderationSurviving Company. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Membership Interests are presented to the Exchange AgentSurviving Company, it they shall be canceled cancelled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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 StockMerger Consideration provided for, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with the procedures set forth, in this Article II and elsewhere in this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior The number of shares of Parent Common Stock to be delivered to the Closing DateSellers hereunder will be, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; providedaggregate, howeveran amount that shall not exceed the Aggregate Consideration.
(b) At the Closing, that Acquiror each Seller shall afford deliver to Parent the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificate or certificates evidencing such Company Stock, in physical or electronic form, as the case may be (the “Certificates”)) evidencing the Dioriga Shares or Positive Shipping Shares, as applicable, owned by each of the Sellers, accompanied by stock powers duly executed in blank from each Seller and any other duly executed instruments of transfer required to transfer good and marketable title to the extent Shares to Parent in a form reasonably acceptable to Parent (it being understood that such instruments shall not require the Sellers or any such Company Stock is represented by a Certificateother Person to make any representations, warranties, covenants or agreements not expressly set forth in exchange for the right to receive the applicable portion of Total Consideration payable to such holderthis Agreement). The Exchange Agent Sellers’ Representative shall (A) on the Closing Date, issue confirm to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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) Parent at least three (3) Business Days prior to the Closing DateDate that it or the Sellers have in their possession such Certificates and such executed instruments of transfer.
(c) At the Closing, the portion upon surrender for cancellation to Parent of all of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion Certificates that represent all of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Dioriga Shares and Company Preferred and/or Positive Shipping Shares, as applicable, have been converted pursuant to Section 3.01(a) owned by the Sellers (after giving effect to Section 3.01(dtogether with such duly executed instruments of transfer)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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 Dioriga Seller shall be entitled to receive (and theretofore paid with respect to such shall receive from Parent) in exchange therefor shares of Acquiror Parent Common StockStock issued in book-entry form representing the Aggregate Dioriga Consideration, and (ii) at the appropriate payment datePositive Shipping Seller shall be entitled to receive (and shall receive from Parent) in exchange therefor shares of Parent Common Stock issued in book-entry form representing the Aggregate Positive Shipping Consideration. Without limiting the post-closing obligations of Parent hereunder, all shares of Parent Common Stock delivered upon the amount surrender for exchange of dividends Dioriga Shares or other distributionsPositive Shipping Shares, as applicable, in accordance with a record date after the Effective Time but prior terms hereof shall be deemed to surrender and a payment date occurring after surrender, payable with respect have been delivered in full satisfaction of all rights pertaining to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (Dioriga Shares or such earlier datePositive Shipping Shares, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretoas applicable.
(d) If at any Certificate time during the period between the date of this Agreement and the Closing, any change in the number of outstanding shares of Parent Common Stock shall have been lostoccur as a result of any stock split (including a reverse stock split) or combination, stolen or destroyedany stock dividend or stock distribution (including any dividend or distribution of securities convertible into or exchangeable for shares of Parent Common Stock) is declared with a record date during such period, upon then the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange AgentAggregate Consideration, 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 CertificateAggregate Dioriga Consideration, the Exchange Agent Aggregate Positive Shipping Consideration and any other provisions hereunder that reference a fixed number of shares of Parent Common Stock shall issuebe equitably adjusted to reflect such change; provided, in exchange for such lost, stolen or destroyed Certificate, that the Closing Consideration or Non-Accredited Holder Cash Consideration Per Share Price shall be subject to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of adjustment pursuant to this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of 3.1(d) until the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)Subject Shares Release Date.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Share Purchase Agreement (Star Bulk Carriers Corp.)
Surrender and Payment. (a) Prior Following the date hereof and prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided.
(b) No later than the close of business on the tenth (10th) Business Day prior to the anticipated Closing Date, however, that Acquiror shall afford the Company shall have prepared an Ownership Allocation containing the opportunity Company Stockholders and Company Promised Optionholders and setting forth the allocation of Merger Consideration to review any proposed Contract with be received by each Person enumerated therein, applying the methodology, assumptions, formulas and techniques set forth in Schedule 3.01. The parties hereto shall confer regarding the foregoing schedule no later than the fifth (5th) Business Day prior to the anticipated Closing Date, shall make such changes thereto as the parties hereto may mutually and in good faith agree, and, subject to the agreement of the parties hereto, such schedule shall be the “Ownership Allocation” hereunder. In addition, the Company shall provide all information reasonably requested by the Exchange Agent prior in order to executionenable the Exchange Agent to open accounts for each Person enumerated in the Ownership Allocation.
(c) Promptly after the Effective Time, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror Parent shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01, 3.01 a letter of transmittal (which shall be in the form attached hereto as Exhibit D and substance reasonably acceptable to Company) (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Merger Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following Promptly after the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant to the preceding clause (A)Exchange Agent shall, no later than three (3) Business Days as promptly as reasonably practicable after receipt of a Certificate (only to the extent such Company 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 other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith), issue to the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Merger Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceledcancelled. The Exchange Agent shall deliver the portion of the Total Merger Consideration into which such shares of Company Common Shares and Company Preferred Shares, as applicable, Stock have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d3.01(c), Section 3.04, Section 3.05(a) and Section 3.06) as reflected in accordance with the Ownership Allocation as set forth in the SpreadsheetAllocation, electronically through book entry-deliverydelivery or, upon the written request of any Company Stockholder, in the form of an original stock certificate to the address set forth in such Company Stockholder’s Letter of Transmittal. Unless otherwise provided herein, no No interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the a portion of the Total Merger Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a3.07(c).
(bd) No dividends or other distributions declared or made after the Effective Time with respect to the Acquiror Parent 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 Parent 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 Parent 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 Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Parent Common Stock.
(ce) Any Closing Consideration and Non-Accredited Holder Cash Merger Consideration remaining unclaimed by the Company Holders three Stockholders two (32) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto. None of Parent, Merger Sub, the Company or the Exchange Agent shall be liable to any person in respect of any shares of Parent Common Stock delivered to a Governmental Authority pursuant to any applicable abandoned property, escheat or similar Law.
(df) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Merger Consideration to be paid in respect of the shares of Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Securities 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 evidencing any Shares (each, a “Stock Certificate”) and each holder of record of an Option, a Warrant, an RSU, a Convertible Note or Restricted Stock shall cease to have any rights as a Stockholder, an Optionholder, a Warrantholder, an RSU Holder, a Noteholder or a holder of Restricted Stock, respectively.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange a paying agent reasonably acceptable to the Company (the “Exchange Paying Agent”) to act as the exchange paying agent in the First Merger; provided.
(c) As promptly as reasonably practicable after obtaining the Requisite Company Vote, however, that Acquiror Paying Agent shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record Shares (including, for the avoidance of Company Stock entitled to receive a portion doubt, each Noteholder and each holder of the Total Consideration pursuant to Section 3.01, Restricted Stock) a letter of transmittal in substantially the form attached hereto as Exhibit D E (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered 2.8(b). Paying Agent shall, no later than the later of (i) the Effective Time and (ii) promptly after receipt of a Certificate (only to the extent such Company Stock is represented by a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Paying Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 pay to the holder of such Stock Certificate (or any Company Stock not represented by a Certificatecash amount as provided in Section 2.8(b) the portion of the Total Consideration with respect to the Shares evidenced by such Stock Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Stock Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding Stock Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented evidenced shares of Company Common Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.8(b). If after the Effective Time, any Stock Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Paying Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a2.11(c).
(bd) No dividends or other distributions declared or made As promptly as reasonably practicable after obtaining the Requisite Company Vote, Paying Agent shall mail to each Optionholder a Letter of Transmittal, and instructions for completing, executing and returning the Letter of Transmittal in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.9. With respect to each Optionholder, Paying Agent shall, no later than the later of (i) the Effective Time or (ii) promptly after receipt of a Letter of Transmittal duly completed and validly executed in accordance with respect the instructions thereto and any other customary documents that Paying Agent may reasonably require in connection therewith, pay to the Acquiror Common Stock with such Optionholder a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate (or Company Stock not represented by a Certificatecash amount as provided in Section 2.9(a) with respect to the Acquiror Common Stock issuable to such holder hereunder In-Money Options in consideration for respect of which the surrender Letter 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)Transmittal was delivered. Subject to the effect of escheatUnless otherwise provided herein, tax or other applicable Laws, following surrender of any such Certificate (or Company Stock not represented by a Certificate), there no interest 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, 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 occurring after surrender, shall accrue on any cash payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property upon delivery of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property Letter of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this AgreementTransmittal.
(e) The provisions As promptly as reasonably practicable after obtaining the Requisite Company Vote, Paying Agent shall mail to each Warrantholder a Letter of this Section 3.04 shall applyTransmittal, mutatis mutandisand instructions for completing, to Company Optionholders entitled to a executing and returning such Letter of Transmittal in exchange for the applicable portion of the Total Merger Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)2.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company a bank or trust company (the “"Exchange Agent”") for the purpose of exchanging certificates representing Shares for the Merger Consideration. Parent will make available to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Merger Consideration to be paid in respect of the Company Stock formerly represented by Shares (the "Exchange Fund"). Promptly after the Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of Shares as of the Effective Time a letter of transmittal for use in such Certificate exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Shares to the Exchange Agent). The Exchange Agent shall, pursuant to irrevocable instructions, make the payments provided in accordance with this Section 2.2. The Exchange Fund shall not be used for any other purpose, except as provided in this Agreement.
(eb) The provisions Each holder of this Section 3.04 shall applyShares that have been converted into the Merger Consideration, mutatis mutandisupon surrender to the Exchange Agent of a certificate or certificates representing such Shares, to Company Optionholders together with a properly completed letter of transmittal covering such Shares and other customary documentation, will be entitled to receive the Merger Consideration payable in respect of such Shares. As of the Effective Time, all such Shares shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate previously representing any such Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration upon surrender of the certificates representing such Shares, as contemplated hereby.
(c) If any portion of the Total Merger Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form is to be mutually agreed paid to a person other than the registered holder of the Shares represented by the Acquiror certificate or certificates surrendered in exchange therefor, it shall be a condition to such payment that the certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a person other than the registered holder of such Shares or establish to the satisfaction of the Parent and the Company).
(f) The provisions Exchange Agent that such tax has been paid or is not required. For purposes of this Section 3.04 shall applyAgreement, mutatis mutandis"person" means an individual, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03corporation, with the Noteholders being required to deliver their applicable Payoff Lettera partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, appoint an exchange agent Purchaser shall designate a bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) to act as paying agent (the exchange agent "Paying Agent") for the payment of the Merger Consideration in respect of Certificates (as defined below) that, immediately prior to the Effective Time, represent Common Shares entitled to payment of the Merger Consideration pursuant to Section 1.2. Immediately prior to the Effective Time, Purchaser shall deposit, or cause to be deposited, in trust with the Paying Agent in cash the aggregate Merger Consideration into which Common Shares shall have been converted pursuant to Section 1.2, such amount being hereinafter referred to as the "Payment Fund."
(b) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of certificates that, immediately prior to the Effective Time, represent Common Shares (the "Certificates") a form of letter of transmittal which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent and instructions for use in surrendering such Certificates and receiving the Merger Consideration in respect thereof. Upon the surrender of each such Certificate, together with a duly executed letter of transmittal and any other required documents, the Paying Agent shall, as soon as practicable, pay the holder of such Certificate an amount equal to the product of (x) the Merger Consideration multiplied by (y) the number of Common Shares formerly represented by such Certificate, less any required withholding taxes, in consideration therefor, and such Certificate shall be cancelled. Until so surrendered, each such Certificate (other than Certificates representing Purchaser Shares, Common Shares held in the First Mergertreasury of the Company or by any wholly-owned Subsidiary of the Company, LFSRI Shares or Dissenting Shares) shall represent solely the right to receive the aggregate Merger Consideration relating thereto. The Paying Agent shall invest the Payment Fund as directed by Purchaser (so long as such directions do not impair the rights of the holders of Common Shares) in direct obligations of, or money market funds substantially all the assets of which are invested in direct obligations of, the United States of America, or by any agency the obligations of which are backed by the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest. Any interest and other income resulting from such investments shall be paid to Purchaser, and no interest or other income shall be paid or accrued on the Merger Consideration to the holders of Common Shares. Subject to Section 1.3(c), the Paying Agent shall, pursuant to irrevocable instructions, pay the Merger Consideration as set forth in this Section 1.3 out of the Payment Fund. The Payment Fund shall not be used for any purpose other than as provided herein. If the Merger Consideration (or any portion thereof) is to be delivered to any individual, corporation, trust, association, unincorporated association, estate, partnership, joint venture, limited liability company, Governmental Authority or other legal entity (each, a "Person"), other than the Person in whose name the Certificate surrendered is registered, it shall be a condition to such right to receive such Merger Consideration that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer, that the signatures on the Certificate shall be properly guaranteed, and that the Person surrendering such Common Shares shall pay to the Paying Agent any transfer or other taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Paying Agent that such taxes have been paid or are not applicable. In the event any Certificate shall have been lost, stolen or destroyed, the Paying Agent shall be required to pay the full Merger Consideration in respect of any Common Shares represented by such Certificate; provided, however, that Acquiror shall afford Purchaser may require the Company owner of such lost, stolen or destroyed Certificate to execute and deliver to the opportunity Paying Agent a form of affidavit claiming such Certificate to review any proposed Contract with the Exchange Agent prior be lost, stolen or destroyed in form and substance reasonably satisfactory to executionPurchaser, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder posting by such owner of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal bond in the form attached hereto such amount as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, Purchaser may determine is reasonably necessary as the case indemnity against any claim that may be made against Purchaser or the Paying Agent.
(the “Certificates”), to the extent c) At any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) time following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock date which 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and 135 days after the Effective Time, for Surviving Corporation may require that the Paying Agent shall deliver to Surviving Corporation all purposescash, Certificates and other documents in its possession relating to evidence only the right to receive transactions contemplated by this Agreement. Thereafter, each holder of a Certificate (other than Certificates representing Purchaser Shares, Common Shares held in the portion treasury of the Total Consideration. If after Company or by any wholly-owned Subsidiary of the Effective TimeCompany, any Certificate (LFSRI Shares or any Company Stock not represented by a CertificateDissenting Shares) is presented to the Exchange Agent, it shall be canceled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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 may surrender such Certificate (or Company Stock not represented by a Certificate). Subject to the effect of escheatSurviving Corporation and (subject to applicable abandoned property, tax escheat and similar Laws) receive in consideration therefor the aggregate Merger Consideration relating thereto, without any interest or other applicable Lawsincome thereon. Notwithstanding the foregoing, following surrender none of Purchaser, Merger Sub, the Surviving Corporation, the Company or the Paying Agent shall be liable to any Person in respect of any cash properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any such Certificate (or Company Stock Certificates shall 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, have been surrendered immediately prior to such time when the amounts date on which any payment pursuant to this Section 1.3 would otherwise escheat to or become the property of any Governmental Authority) shall become, the cash payment in respect of such Certificate shall, to the extent permitted by applicable Law, become the property of Acquiror the Surviving Corporation, free and clear of any all claims or interest interests of any Person previously entitled thereto.
(d) If any Certificate shall have been lost, stolen or destroyed, upon Immediately prior to the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange AgentEffective Time, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect stock transfer books of the Company Stock formerly represented by such Certificate shall be closed, and, after the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Common Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent, they shall be surrendered and cancelled in accordance with return for the payment of the aggregate Merger Consideration relating thereto, as provided in this AgreementSection 1.3.
(e) The provisions From and after the Effective Time, all holders of this Section 3.04 Certificates evidencing ownership of Common Shares outstanding immediately prior to the Effective Time (other than the Certificates representing Purchaser Shares) shall apply, mutatis mutandis, cease to Company Optionholders entitled have any rights with respect to a portion such Common Shares except (i) holders of Common Shares that are not Dissenting Shares may surrender such Certificates in exchange for the Total Merger Consideration pursuant to this Agreement, (ii) holders of Dissenting Shares may perfect any rights of appraisal as a holder of Dissenting Shares that such holders may have pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion 262 of the Total DGCL and (iii) holders of Dissenting Shares who fail to perfect or withdraw or otherwise lose the right to appraisal may surrender such Certificates in exchange for the Merger Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letterthis Agreement.
Appears in 1 contract
Samples: Merger Agreement (Lazard Freres Real Estate Investors LLC)
Surrender and Payment. (a) Prior At the Effective Time, all Interests outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost and expensesubject to Section 2.9, appoint an exchange agent reasonably acceptable to the Company either (the i) each holder of a certificate formerly representing any Interests (each, a “Exchange AgentCertificate”) shall cease to have any rights as a member of the Target Company; or (ii) in the case of uncertificated Interests, such holder shall cease to have any rights as a member of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the First Merger; providedMerger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, however, that Acquiror Holdings shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Target Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Membership Interest a letter of transmittal in form and substance reasonably satisfactory to the form attached hereto as Exhibit D parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate 2.8(b). Holdings shall, no later than the later of (only to i) the extent such Company Stock is represented by Closing Date or (ii) five (5) Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Holdings may reasonably require in connection therewith) at least three (3) Business Days prior , deliver to the Closing Date, the holder of such Certificate such holder’s portion of the Total Merger Consideration as provided in Section 2.8(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)cancelled. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Target Company Stock Membership Interest (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Interests) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentHoldings, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.10.
(bd) No dividends Each Target Company Member shall also be entitled to any amounts that may be payable in the future in respect of the Interests formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Members on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings any transfer or other distributions declared Tax required as a result of such payment to a Person other than the registered holder of such Certificate or made after the Effective Time with respect establish to the Acquiror Common Stock with a record date reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Members ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Member who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Target Company Holders three (3) Members two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(dg) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Interests shall be returned to Holdings, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (AIRO Group, Inc.)
Surrender and Payment. (a) Prior At the Effective Time, all shares of Company Capital Stock outstanding immediately prior to the Closing Date, Acquiror shall, at its sole cost Effective Time shall automatically be cancelled and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, retired and shall accept the Company’s reasonable comments thereto. Prior cease to the Closing Dateexist, Acquiror shall cause the Exchange Agent and, subject to mail to Sections 2.6(c) and 2.7, each Stockholder and each holder of record of a Company Stock entitled Option or Warrant shall cease to receive have any rights as a stockholder of Company or a holder of Company Options or Warrants.
(b) The total merger consideration payable by Buyer is the Merger Consideration. The Closing Merger Consideration will be paid in accordance with Section 2.9(c). Any positive Final Adjustment Calculation will be payable by Buyer in accordance with Section 3.6. Any released Aggregate Escrow Amount will be payable by Escrow Agent following the Closing in accordance with the Escrow Agreement and Section 9.7. Any Contingent Consideration will be payable by Buyer in accordance with Article IV.
(c) At the Closing, as more specifically provided in the Funds Flow Statement (as defined below), including the accounts designated therein, (i) Buyer shall pay to the Exchange Agent by wire transfer of immediately available funds the (A) Closing Merger Consideration, less (B) the Transaction Bonus Plan Closing Amount (the “Net Closing Merger Consideration”), (ii) Buyer shall pay the Aggregate Escrow Amount to the Escrow Agent by wire transfer of immediately available funds, (iii) Buyer shall pay the Transaction Bonus Plan Closing Amount to Company by wire transfer of immediately available funds, which will thereafter be paid by the Surviving Corporation to the Transaction Bonus Plan Participants in accordance with Section 2.13, (iv) Buyer shall pay the Estimated Transaction Expenses to the payees thereof reflected on the Funds Flow Statement by wire transfer of immediately available funds, (v) Buyer shall pay the Estimated Indebtedness to the holders thereof as reflected on the Fund Flow Statement by wire transfer of immediately available funds, and (vi) Buyer shall pay the Representative Expense Fund to Representative in accordance with Article XI hereof. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge that the employer portion of payroll tax component of the Total Consideration pursuant Transaction Bonus Plan Closing Amount delivered to Section 3.01the Surviving Corporation at Closing is an estimate, and if the actual Transaction Bonus Plan Closing Amount (including employer payroll taxes actually payable therewith) differs from the Transaction Bonus Plan Closing Amount delivered to the Surviving Corporation at Closing, then (x) in the event the actual Transaction Bonus Closing Amount is greater than the estimate delivered to the Surviving Corporation at Closing due to an under-estimate of employer payroll tax actually payable therewith, Representative, will, upon receipt of written documentation from Surviving Corporation evidencing the employer payroll tax amount, promptly deliver written notice to the Escrow Agent directing the Escrow Agent to pay any such payroll Taxes out of the Purchase Price Adjustment Escrow Fund or (y) in the event the actual Transaction Bonus Closing Amount is less than the estimate delivered to the Surviving Corporation at Closing due to an over-estimate of employer payroll tax actually payable therewith, then Buyer shall pay the amount of such difference to the Escrow Agent which amount will be added to and included within the Purchase Price Adjustment Escrow Fund.
(d) Promptly following the Closing, but in any event within five (5) days following the Closing, Buyer shall cause the Surviving Corporation or Exchange Agent to deliver to each holder of Company Capital Stock (other than any such holder that has previously executed and delivered a Letter of Transmittal) a letter of transmittal in substantially the form attached hereto as Exhibit D A (a “Letter of Transmittal”) (which Letter of Transmittal shall be included in the same transmittal as the Notice of Appraisal Rights delivered in accordance with Section 2.8(b)) and instructions for use in effecting the surrender of the certificates evidencing formerly representing the shares of Company Capital Stock held such Company Stockholder (each, a “Certificate”) (and/or, in physical or electronic form, as the case may be (the “Certificates”of any lost or damaged certificates formerly representing any shares of Company Capital Stock held by such holder, an affidavit of lost stock certificate), to the extent any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Merger Consideration payable pursuant to such holderSection 2.6(c) and the Distribution Schedule. The Exchange Agent shall shall, no later than the later of (Ai) on the Closing Date or (ii) if received following the Closing Date, issue to each holder three (3) Business Days after receipt of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (and/or, as applicable, an affidavit of lost stock certificate), together with a Letter of 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 (3) Business Days prior thereto, pay to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by Stockholder a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed cash amount in accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require in connection therewith), issue to the holder of such Certificate (or any Company Stock not represented by a CertificateSection 2.6(c) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceledDistribution Schedule. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or shall accrue on any portion of the Total Consideration cash payable upon surrender of any Certificate (or any Company Stock not represented by a Certificatepursuant to this Section 2.9(d). Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Capital Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.6(c). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificateand/or, as applicable, an affidavit of lost stock certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement2.9.
(e) The provisions Notwithstanding anything in this Agreement to the contrary, none of this Section 3.04 Buyer or the Surviving Corporation shall applybe liable to any holder of a Certificate, mutatis mutandis, any Company Option or Warrant or to Company Optionholders entitled any other Person for any amount paid to a portion of the Total Consideration public official pursuant to Section 3.03applicable abandoned property laws, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)escheat law or similar Law.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a Any portion of the Total Merger Consideration pursuant made available to Section 3.03the Exchange Agent in respect of any Dissenting Shares shall be returned to Buyer, upon demand at such time that any payment in respect of such Dissenting Shares is required to be made by the Surviving Corporation in accordance with the Noteholders being required to deliver their applicable Payoff LetterDGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior At the Effective Time, all Units outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost subject to Section 2.10, each holder of any Units shall cease to have any rights as a member of the Company.
(b) As promptly as practicable following the date hereof and expensein any event not later than five (5) Business Days thereafter, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail provide to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Units a letter of transmittal in the form attached hereto as Exhibit D mutually agreed to between the Parent and the Company (each, a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 receiving the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate this Agreement. Parent shall, no later than the later of (only to i) the extent such Company Stock is represented by a CertificateClosing Date or (ii) five (together with 5) Business Days after receipt of a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Parent may reasonably require in connection therewith) at least three (3) Business Days prior , pay to the Closing Date, the portion of the Total Consideration with respect to such Certificate (applicable Unitholder or any Company Stock not represented by Warrantholder a Certificatecash amount as provided in Section 2.08(a) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to or Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares2.09, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stockcash.
(c) Any Closing Consideration Each Unitholder and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior Warrantholder shall also be entitled to such time when the amounts would otherwise escheat to or become property Unitholder’s and Warrantholder’s Pro Rata Share of any Governmental Authority) shall becomeamounts that may become payable in the future in respect of such Unit and the cancelled Warrants from the Member Representative Expense Fund (if any), to as provided in this Agreement, and as specified or illustrated in the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretoConsideration Spreadsheet.
(d) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect Any portion of the Company Stock formerly represented Merger Consideration that remains unclaimed after Closing shall be held by such Certificate Parent for the benefit of the applicable Unitholder or Warrantholder until the earlier of (i) payment being made in accordance with this Agreement.
Section 2.11(b) and (eii) The provisions the one (1) year anniversary of this Section 3.04 the Closing. Notwithstanding the foregoing, Parent shall apply, mutatis mutandis, not be liable to Company Optionholders entitled any Unitholder or Warrantholder for any amounts paid to a portion of the Total Consideration public official pursuant to Section 3.03applicable abandoned property, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)escheat or similar Laws.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent (the "EXCHANGE AGENT") reasonably acceptable satisfactory to the Company for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Exchange Agent”"CERTIFICATES") or (ii) uncertificated shares of Company Stock (the "UNCERTIFICATED SHARES"). Immediately prior to act as the exchange agent in the First Merger; providedEffective Time, however, that Acquiror shall afford the Company shall deposit $18 million in cash (the opportunity to review any proposed Contract "COMPANY CASH DEPOSIT") with the Exchange Agent prior to execution, Agent. The Company Cash Deposit shall be made solely out of Freely Available Cash and shall accept be used solely for purposes of paying a portion of the Merger Consideration in accordance with this Article 2 and shall not be used to satisfy any other obligation of the Company or any of its Subsidiaries. At or immediately following the Effective Time, Parent shall make available to the Exchange Agent cash, for the benefit of the holders of Certificates and Uncertificated Shares, in an amount sufficient to pay all remaining aggregate Merger Consideration in excess of the Company Cash Deposit. Promptly after the Effective Time (but, subject to receipt by the Exchange Agent of the necessary stockholder records from the Company’s reasonable comments thereto. Prior to 's transfer agent, in no event more than ten (10) Business Days after the Closing DateEffective Time), Acquiror Parent shall send, or shall cause the Exchange Agent to mail send, to each holder of record shares of Company Stock entitled to receive a portion of at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal in the form attached hereto as Exhibit D (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 Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in effecting such exchange. The parties hereby acknowledge and agree that the ten (10)-Business Day period set forth in the previous sentence will be tolled for each Business Day the Exchange Agent has not received the necessary stockholder records from the Company's transfer agent.
(b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) 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, together with a properly completed letter of transmittal, the Merger Consideration in respect of the certificates evidencing such Company Stock, in physical Stock represented by a Certificate or electronic formUncertificated Share. Until so surrendered or transferred, as the case may be (be, each such Certificate or Uncertificated Share shall represent after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall Merger Consideration.
(Ac) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a If any portion of the Total Merger Consideration pursuant is to Section 3.01 be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that has delivered a (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (only ii) the Person requesting such payment shall pay to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the Closing Date, the portion satisfaction of the Total Consideration with respect to Exchange Agent that such Certificate tax has been paid or is not payable.
(or any Company Stock not represented by a Certificated) so surrendered and the Certificate shall forthwith be canceled; and (B) following After the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest there shall be paid or shall accrue on any portion no further registration of the Total Consideration payable upon surrender transfers 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and Stock. If, after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (Certificates or any Company Stock not represented by a Certificate) is Uncertificated Shares are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(be) No dividends or other distributions declared or Any portion of the Merger Consideration made after the Effective Time with respect available to the Acquiror Common Exchange Agent pursuant to Section 2.03(a) that remains unclaimed by the holders of shares of Company Stock with a record date nine (9) months after the Effective Time shall be paid returned to the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of any unsurrendered Certificate (or Company Stock not represented by a Certificate) for the Merger Consideration in accordance with respect this Section 2.03 prior to that time shall thereafter look only to the Acquiror Common Stock issuable to such holder hereunder Surviving Corporation for payment of the Merger Considerations in consideration for the surrender respect of such Certificate (or Company Stock not represented by a Certificate) until shares without any interest thereon. Notwithstanding 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 escheatforegoing, 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, and (ii) at the appropriate payment dateneither Parent, the amount of dividends Surviving Corporation or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration be liable to be paid in respect any holder of the shares of Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled for any amounts paid to a portion of the Total Consideration public official pursuant to Section 3.03applicable abandoned property, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)escheat or similar laws.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a Any portion of the Total Merger Consideration made available to the Exchange Agent pursuant to Section 3.03, with 2.03(a) to pay for shares of Company Stock for which appraisal rights have been perfected shall be returned to the Noteholders being required to deliver their applicable Payoff LetterSurviving Corporation upon demand.
Appears in 1 contract
Samples: Merger Agreement (Printronix Inc)
Surrender and Payment. (a) Prior Not less than five (5) days prior to the Closing Date, Acquiror shall, at its sole cost Parent shall designate and expense, appoint enter into an exchange agent reasonably acceptable agreement with a bank or trust company in the U.S. to serve as Paying Agent in the Merger (the “Paying Agent”). A copy of the agreement with the Paying Agent shall be provided to the Company (Agent. Immediately after the “Exchange Agent”) to act as Effective Time, the exchange agent in the First Merger; provided, however, that Acquiror Surviving Company shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior pay to the Closing DatePaying Agent, Acquiror in immediately available funds, sufficient cash necessary for the payment of the Merger Consideration as provided in Section 1.11 upon surrender as part of the Merger of Company Share Certificates formerly representing Company Shares. Funds made available to the Paying Agent shall be invested by the Paying Agent as reasonably directed by the Surviving Company.
(b) As promptly as practicable after the Effective Time (and in any event within three (3) business days after the Effective Time), the Surviving Company shall cause the Exchange Paying Agent to mail to each holder of record of a Company Stock entitled to receive a portion of Share Certificate (other than the Total Consideration pursuant to Section 3.01, Closing Date Payees): (i) a letter of transmittal in the form attached hereto as Exhibit D O (a the “Letter of Transmittal”), which (1) specifies that delivery shall be effected, and risk of loss and title to the Company Share Certificates shall pass, only upon actual delivery of the Company Share Certificates to the Paying Agent, (2) contains an appointment of the Company Agent as the agent and true and lawful attorney-in-fact of the Effective Time Holders in accordance with Section 11.1 and (3) is otherwise acceptable to Parent and the Company; and (ii) instructions for use in effecting the surrender of the certificates 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, Share Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holderMerger Consideration, without any interest thereon. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record Upon surrender of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only Share Certificates for cancellation to the extent such Company Stock is represented by a Certificate) (Paying Agent, together with a duly executed Letter of 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 (3) Business Days prior to the Closing DateTransmittal, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (Company Share Certificates shall be entitled to receive in exchange therefor a check or any Company Stock not represented by a Certificate) wire transfer in the portion amount of the Total Per Share Merger Consideration with respect to (less such Certificate (or any Company Stock not represented by a Certificate) so surrendered holder’s Pro Rata Share of the Escrow Amount, the Tax Escrow Amount and the Certificate shall forthwith Company Agent Retention Amount) for each Company Share formerly represented thereby to be canceled. The Exchange Agent shall deliver the portion mailed or paid within five (5) business days of the Total Consideration into which receipt of such Company Common Shares Share Certificate and Company Preferred SharesLetter of Transmittal, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with this Section, and the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest Company Share Certificates so surrendered shall be paid or shall accrue on any portion of canceled.
(c) Promptly following the Total Consideration payable upon surrender of any Certificate date that is six (or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate6) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and months after the Effective Time, unless the Surviving Company shall otherwise direct the Paying Agent in writing, the Paying Agent shall deliver to the Surviving Company all cash and any documents in its possession relating to the Transactions, and the Paying Agent’s duties shall terminate. Thereafter, each holder of a Company Share Certificate shall thereafter look only to the Surviving Company for all purposespayment of the Merger Consideration and may surrender such Company Share Certificate to the Surviving Company or Parent and (subject to applicable abandoned property, to evidence only the right to escheat and similar laws) receive the in exchange therefor its applicable portion of Merger Consideration, without any interest thereon. Notwithstanding the Total Consideration. foregoing, none of the Paying Agent, Parent, Merger Sub, the Company or the Surviving Company shall be liable to a holder of Company Shares for any amounts delivered to a public official pursuant to applicable abandoned property, escheat or similar Legal Requirement.
(d) If any Company Share Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Share Certificate to be lost, stolen or destroyed, the Paying Agent (or if more than six (6) months after the Effective Time, any Certificate (the Surviving Company or any Parent), shall issue in exchange for such lost, stolen or destroyed Company Stock not represented by a Share Certificate) is presented to , the Exchange Agent, it shall be canceled and exchanged as provided Merger Consideration deliverable in respect thereof determined in accordance with this Section 3.04(a)Agreement.
(be) No dividends or other distributions declared or made after the Effective Time with respect to capital stock of the Acquiror Common Stock Surviving Company 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 Share 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(cf) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be All cash paid in respect of the surrender for exchange of Company Stock formerly represented by such Certificate Shares in accordance with the terms hereof shall be deemed to be in full satisfaction of all rights pertaining to such Company Shares. If, after the Effective Time, Company Share Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
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Surrender and Payment. (a) Prior to Promptly after the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail EVSI will send to each holder of record at the Effective Time of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Shares a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates to EVSI) in such form attached hereto as Exhibit D (a “Letter of Transmittal”) the Company and instructions EVSI may reasonably agree, for use in effecting the surrender delivery of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be Shares to EVSI.
(the “Certificates”), to the extent any such b) Each holder of Company Stock is represented by Shares that have been converted into a Certificate, in exchange for the right to receive the applicable portion Merger Consideration, upon surrender to EVSI of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Datea Certificate, issue to each holder together with a properly completed letter of record of Company Stock transmittal, will be entitled to receive a portion the allocable share of Merger Consideration in respect of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is Shares represented by a such Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding such Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive such allocable share of Merger Consideration. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of this Article II.
(c) If any portion of the Total ConsiderationMerger Consideration is to be paid to a Person other than the Person in whose name the Certificate is registered, it shall be a condition to such payment that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to EVSI any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of EVSI that such tax has been paid or is not payable.
(d) At the Effective Time, the stock transfer books of the Company shall be closed and no transfers of Company Shares shall thereafter be made. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Sub or EVSI, it they shall be canceled and exchanged as provided in this Section 3.04(a)for the Merger Consideration.
(be) No dividends or other distributions declared or made after the Effective Time with respect to the Acquiror Common Stock with a record date after the Effective Time party hereto shall be liable to any holder of Company Shares for any amount paid to the holder of any unsurrendered Certificate (or Company Stock not represented by a Certificate) with respect public official pursuant 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)applicable abandoned property, escheat and similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of Company Holders three (3) Shares five years after the Effective Time (or such earlier date, date immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authoritygovernmental entity) shall becomeshall, to the extent permitted by applicable Lawlaw, become the property of Acquiror EVSI free and clear of any claims or interest of any Person previously entitled thereto.
(df) If No dividends or other distributions with respect to the EVSI Shares issued in the Merger shall be paid to the holder of any Certificate unsurrendered Certificates until such Certificates are surrendered as provided in this Agreement. Subject to the effect of applicable laws, following such surrender, there shall have been lostbe paid, stolen without interest, to the record holder of the EVSI Shares issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such EVSI Shares with a record date after the Effective Time and a payment date on or destroyed, upon prior to the making date of an affidavit of loss such surrender and indemnity by not previously paid and (ii) at the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agentappropriate payment date, 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 dividends or other distributions payable with respect to such Certificate, EVSI Shares with a record date after the Exchange Agent shall issue, in exchange for Effective Time but with a payment date subsequent to such lost, stolen surrender. For purposes of dividends or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid other distributions in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions EVSI Shares, all of this Section 3.04 the EVSI Shares to be issued pursuant to the Merger shall apply, mutatis mutandis, to Company Optionholders be entitled to a portion dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)Effective Time.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
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Surrender and Payment. (a) Prior At the Effective Time, all Shares outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost and expensesubject to Section 2.10, appoint an exchange agent reasonably acceptable to the Company each holder of a certificate formerly representing any Shares (the each, a “Exchange AgentCertificate”) shall cease to act have any rights as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept a stockholder of the Company’s reasonable comments thereto. Prior to .
(b) As promptly as practicable following the Closing Datedate hereof and in any event not later than five (5) Business Days after the execution of this Agreement, Acquiror the Stockholder Representative shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Shares a letter of transmittal in substantially the form attached hereto as Exhibit D EXHIBIT C (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Merger Consideration payable pursuant to such holder. The Exchange Agent Section 2.08(b).
(c) At the Closing, Parent shall (A) on the Closing Date, issue pay or cause to be paid to each holder of record of Company Stock entitled the Shares who has returned to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only Parent electronically, prior to the extent such Company Stock is represented by a CertificateClosing, his, her or its fully completed and executed Letter of Transmittal, scanned copy of Certificate(s) (together with a Letter or affidavit of Transmittal duly completed lost Certificate(s)) evidencing ownership of his, her or its Shares and validly executed in accordance with the instructions thereto and any other customary tax forms documents that the Exchange Agent Parent may reasonably require in connection therewith, a cash amount as provided in Section 2.08(b) at least with respect to such Certificate(s) so surrendered, and such Certificate(s) shall be deemed cancelled.
(d) Any Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.11 prior to the Closing shall thereafter look only to Parent for payment of the Merger Consideration. 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. Any amounts remaining unclaimed by Stockholders three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years months after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of or become payable to any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(de) If Prior to the Closing, at the request of Parent, any Certificate Person receiving a payment hereunder shall have been lost, stolen deliver or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate cause to be lost, stolen or destroyed and, if required by delivered to the Company Parent or the Exchange Agent, Surviving Corporation such properly completed and executed documentation as will enable the posting by Parent or Surviving Corporation to determine whether or not such Person of a bondis subject to withholding, in such reasonable amount as the Company 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 backup withholding or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementinformation reporting requirements under Applicable Law.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
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Surrender and Payment. (a) Prior At the Effective Time, all Shares outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost and expensesubject to Section 2.10, appoint an each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Company.
(b) Holdings shall act as the exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided.
(c) As promptly as practicable following the date hereof and in any event not later than five Business Days thereafter, however, that Acquiror Holdings shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Common Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in substantially the form attached hereto as Exhibit D C (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered 2.8(b). If a Certificate Letter of Transmittal is sent before Closing, such Letter of Transmittal from a holder of Certificates and the surrender of Certificates shall not be effective until the Closing. Holdings shall, no later than the later of (only to i) the extent such Company Stock is represented by Closing Date or (ii) five Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Holdings may reasonably require in connection therewith) at least three (3) Business Days prior , deliver to the Closing Date, the holder of such Certificate such holder’s portion of the Total Consideration Rollover Equity as provided in Section 2.8(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)cancelled. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Common Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentHoldings, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.11.
(bd) No dividends Each Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Note 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 or in the Promissory Note, no interest shall be paid or accrued for the benefit of Stockholders on the Merger Consideration.
(e) If any portion of the Merger Consideration is to be paid or delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) 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 Holdings any transfer or other distributions declared Tax required as a result of such payment to a Person other than the registered holder of such Certificate or made after the Effective Time with respect establish to the Acquiror Common Stock with a record date reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Stockholders three months after the Effective Time shall be returned to Holdings, upon demand, and any such Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.11 prior to that time shall thereafter look only to Holdings for payment of the money Merger Consideration and to Holdings for the Rollover Equity; 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 terms of this Agreement and the Promissory Note, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Stockholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) Stockholders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(dg) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Holdings, upon demand.
(eh) The provisions For the avoidance of doubt, nothing in this Section 3.04 2.11 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion interfere with the Stockholders’ security interest in the shares of capital stock of the Total Consideration pursuant to Surviving Corporation, as provided in Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion 3 of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff LetterPromissory Note.
Appears in 1 contract
Samples: Merger Agreement (GigCapital2, Inc.)
Surrender and Payment. (a) Prior At the Effective Time, all Shares outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost and expensesubject to Section 2.10, appoint an exchange agent reasonably acceptable each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a shareholder of the Company other than the right to receive the portion of the Merger Consideration payable hereunder with respect to such Shares.
(the “Exchange Agent”b) to Parent shall act as the exchange agent in the First Merger; provided.
(c) As promptly as practicable following the date hereof, however, that Acquiror Parent shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Common Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by 2.8(b). Parent shall, five Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Parent may reasonably require in connection therewith) at least three (3) Business Days prior , deliver to the Closing Date, the holder of such Certificate such holder’s portion of the Total Initial Equity Consideration as provided in Section 2.8 with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)cancelled. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Common Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentParent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.11.
(bd) No dividends Each Shareholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Note and on account of the Post-Closing Adjustment or the release of funds or Equity Consideration from any escrow account, at the respective time and subject to the contingencies specified herein and therein.
(e) If any portion of the Merger Consideration is to be paid or delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) 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 Parent any transfer or other distributions declared Tax required as a result of such payment to a Person other than the registered holder of such Certificate or made after the Effective Time with respect establish to the Acquiror Common Stock with a record date reasonable satisfaction of Parent that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Shareholders three months after the Effective Time shall be returned to Parent, upon demand, and any such Shareholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.11 prior to that time shall thereafter look only to Parent for payment of the Merger 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 terms of this Agreement and the Promissory Note, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Shareholders 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 the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) Shareholders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(dg) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by Merger Consideration made available to the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid Parent in respect of any Dissenting Shares shall be retained by Parent upon the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion completion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed statutory requirements for dissenting by the Acquiror and the Company)holders of such Dissenting Shares.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) 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 an Option shall cease to have any rights as a stockholder of the Company or a holder of Options.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Buyer shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) Escrow Agent to act as the exchange agent in the First Merger; providedMerger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than ten Business Days thereafter, howeverunless previously delivered by the Company, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Common Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in substantially the form attached hereto as Exhibit D B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Merger Consideration payable pursuant to such holderSection 2.8(b). The Exchange Agent shall shall, no later than the later of (Ai) on the Closing Date (or if the Closing Date is not a Business Day, the first Business Day after the Closing Date, issue to each holder ) or (ii) two Business Days after receipt of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior , pay to the Closing Date, the portion holder of the Total Consideration such Certificate a cash amount as provided in Section 2.8(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash 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 represented shares of Company Stock Shares (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.11.
(bd) No dividends With respect to a Vested Optionholder, Buyer shall cause the Surviving Corporation to pay to such Vested Optionholder on the Closing Date (or if the Closing Date is not a Business Day, the first Business Day after the Closing Date), the cash amount as provided in Section 2.9(a) and the Consideration Spreadsheet, less any required Tax withholding. For payments made, if any, to a Vested Optionholder pursuant to other provisions of this Agreement on a date after the Closing Date, the Stockholders’ Representative and Buyer will cooperate to promptly make such payments in a manner (including through the Surviving Corporation or its applicable Affiliate, if applicable) that ensures proper Tax withholding and information reporting, as required by applicable Law and, subject to the foregoing, to ensure that payments are paid on the same schedule and under the same terms and conditions as apply to payments to Stockholders generally.
(e) Each Stockholder and each Vested Optionholder set forth in Exhibit 2.9 shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Stockholder’s Certificate and such Vested Optionholder’s cancelled Vested 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 Stockholders or Vested Optionholders on the Merger Consideration.
(f) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) 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 transfer or other distributions declared Tax required as a result of such payment to a Person other than the registered holder of such Certificate or made after the Effective Time with respect establish to the Acquiror Common Stock with a record date reasonable satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(g) Any portion of the Merger Consideration that remains unclaimed by the Stockholders six months after the Effective Time shall be returned to Buyer, upon demand, and any such Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.11 prior to that time shall thereafter look only to Buyer for payment of the Merger 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 terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Stockholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Buyer shall not be liable to any holder of Certificates for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) years Stockholders one year after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Buyer free and clear of any claims or interest of any Person previously entitled thereto.
(dh) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Buyer, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shallParent shall appoint a bank, at its sole cost and expense, appoint an exchange agent trust company or nationally recognized stockholder services provider or such other Person reasonably acceptable to the Company as paying agent (the “Exchange Paying Agent”) for the holders of Shares to act as receive the exchange agent aggregate Merger Consideration to which the holders of those Shares shall become entitled pursuant to, and in accordance with, Section 2.5. Contemporaneously with the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash in an aggregate amount sufficient to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Merger Consideration in the First Merger; provided, however, that Acquiror . Parent shall afford provide the Company the a reasonable opportunity to review any proposed Contract with and comment on the Exchange Agent prior to executionform of paying agent agreement and consider in good faith, and shall accept the Company’s use reasonable comments thereto. Prior best efforts to the Closing Date, Acquiror shall cause the Exchange Paying Agent to mail consider, comments on that agreement timely provided by the Company or its legal counsel.
(b) Promptly after the Effective Time, Parent or the Surviving Corporation will send, or will instruct the Paying Agent to send, to each holder of record of Company Stock entitled Shares as of the Effective Time, in each case whose Shares were converted into the right to receive a portion of the Total Merger Consideration pursuant to Section 3.01this Agreement, a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title to the Shares shall pass, only upon proper delivery of (i) the Certificates (or an affidavit of loss in lieu thereof, together with any bond or indemnity agreement, in accordance with Section 3.2) to the form attached hereto as Exhibit D Paying Agent (a “Letter of Transmittal”if applicable) and instructions (ii) the letter of transmittal, properly completed and duly executed, and such other documents as may reasonably be required by the Paying Agent) in such form as the Company and Parent may reasonably agree, for use in effecting the surrender delivery of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be (the “Certificates”), Shares to the extent Paying Agent. Surrender of any such Company Stock is Book-Entry Shares shall be effected in accordance with the Paying Agent’s customary procedures with respect to securities represented by book entry.
(c) Each holder of Shares that have been converted into a Certificate, in exchange for the right to receive the Merger Consideration, upon surrender to the Paying Agent of a Certificate or Book-Entry Share (or affidavits in lieu thereof, together with any bond or indemnity agreement, in accordance with Section 3.2), together with a properly completed and duly executed letter of transmittal and completion of applicable portion of Total Consideration payable to procedures and such holder. The Exchange Agent shall (A) on other documents as may reasonably be required by the Closing DatePaying Agent, issue to each holder of record of Company Stock will be entitled to receive a portion of in exchange therefor the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent for each Share formerly evidenced by such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed Certificates or Book-Entry Shares, and validly executed in accordance with the instructions thereto such Certificates and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate Book-Entry Shares shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith then be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or shall accrue accrued on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)Merger Consideration. Until so surrendered, each outstanding such Certificate or Book-Entry Share shall, after the Effective Time, represent for all purposes only the right to receive such Merger Consideration as contemplated by Section 2.5.
(or d) If any Company Stock not represented by portion of the Merger Consideration is to be paid to a Certificate) that prior Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition to the Effective Time represented shares payment thereof that (i) the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and (ii) the Person requesting such delivery of Company Stock the Merger Consideration shall either (A) pay to the Paying Agent any stock transfer or other similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or (B) establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable. None of Parent, Merger Sub and the Surviving Corporation shall have any liability for the shares transfer and other similar Taxes described in this Section 3.1(d) under any circumstance. Payment of the aggregate Merger Consideration, as applicable, with respect to Book-Entry Shares shall be canceled pursuant made only to Section 3.01(dthe Person in whose name such Book-Entry Shares are registered.
(e) All Merger Consideration paid upon the surrender of and Dissenting in exchange for Shares and subject to Section 3.09) in accordance with the terms hereof shall be deemed from to have been paid in full satisfaction of all rights pertaining to such Shares. From and after the Effective Time, for all purposes, to evidence only there shall be no further registration of transfers of Shares made on the right to receive the portion stock transfer books of the Total ConsiderationSurviving Corporation. If If, after the Effective Time, any Certificate (Certificates or any Company Stock not represented by a Certificate) is Book-Entry Shares are presented to the Exchange Paying Agent, it the Surviving Corporation or Parent, they shall be canceled and exchanged as for the consideration provided for by, and in accordance with the procedures set forth in, Article II and this Section 3.04(a)Article III.
(bf) No dividends or other distributions declared or Any portion of the Merger Consideration made after the Effective Time with respect available to the Acquiror Common Stock with a record date Paying Agent pursuant to Section 3.1(a) that remains unclaimed by the holders of Shares one year after the Effective Time shall be paid returned to Parent, or transferred as otherwise directed by Xxxxxx, upon demand, and any such holder who has not exchanged such holder’s Shares for the Merger Consideration in accordance with this Section 3.1 prior to that time shall thereafter look only to Parent for delivery of the Merger Consideration. Notwithstanding the foregoing, none of Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall be liable to any holder of Shares for any unsurrendered Certificate (Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Merger Consideration remaining unclaimed by the Company Holders three (3) holders of Shares two years after the Effective Time (or such earlier date, date immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall becomeshall, to the extent permitted by applicable Law, become the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(dg) If The Paying Agent shall invest any Certificate cash deposited by or on behalf of Parent pursuant to Section 3.1(a) as directed by Parent; provided, however, that (i) in no event shall any losses on such investments affect the cash payable to former holders of Shares pursuant to this Article III, and (ii) such investments shall be in (1) obligations of or guaranteed by the United States of America, (2) commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, (3) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $100 billion, or (4) money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing and, in any such case, no such investment instrument shall have been losta maturity exceeding three months. Any interest and other income resulting from such investments shall be paid promptly to Parent. To the extent there are any losses with respect to any investments of the funds deposited with the Paying Agent, stolen or destroyedthe funds shall for any other reason, including the Dissenting Shares losing their status as such, not be sufficient for the Paying Agent to make prompt payment of the Merger Consideration, then upon the making of an affidavit of loss and indemnity demand by the Person claiming Paying Agent, Parent shall promptly reimburse any such Certificate loss or otherwise provide additional funds (by wire transfer of immediately available funds) so as to ensure that the funds are at all times maintained at a level sufficient for the Paying Agent to make all payments contemplated by this Agreement to be lost, stolen or destroyed and, if required made by the Company or Paying Agent.
(h) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other similar Taxes and fees incurred by a holder of Shares in connection with the Exchange AgentMerger, the posting by such Person of a bond, in such reasonable amount as well as the Company may direct, as indemnity against filing of any claim that may be made against it related Tax Returns and other documentation with respect to such CertificateTaxes and fees, shall be the Exchange Agent shall issue, in exchange for responsibility solely of such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementholder.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (National Western Life Group, Inc.)
Surrender and Payment. (a) Prior At the Effective Time, all Shares outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost and expensesubject to Section 2.9, appoint an exchange agent reasonably acceptable to the Company either (the i) each holder of a certificate formerly representing any Shares (each, a “Exchange AgentCertificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the First Merger; providedMerger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, however, that Acquiror Holdings shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Shares a letter of transmittal in form and substance reasonably satisfactory to the form attached hereto as Exhibit D parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate 2.8(b). Holdings shall, no later than the later of (only to i) the extent such Company Stock is represented by Closing Date or (ii) five (5) Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Holdings may reasonably require in connection therewith) at least three (3) Business Days prior , deliver to the Closing Date, the holder of such Certificate such holder’s portion of the Total Merger Consideration as provided in Section 2.8(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)cancelled. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock Shares (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentHoldings, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.10.
(bd) No dividends Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement, at the respective time and subject to the contingencies specified herein and therein.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings any transfer or other distributions declared Tax required as a result of such payment to a Person other than the registered holder of such Certificate or made after the Effective Time with respect establish to the Acquiror Common Stock with a record date reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Target Company Holders three (3) Stockholders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(dg) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Holdings, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (AIRO Group, Inc.)
Surrender and Payment. (a) Prior to the Closing DateAcceptance Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of paying the Merger Consideration as provided in Section 2.2(a). Parent shall provide (or shall cause to act as be provided) to the exchange agent Exchange Agent, at or prior to the Effective Time, cash sufficient to pay the Merger Consideration in respect of (i) certificated shares of Company Common Stock (the First Merger; providedcertificates representing such certificated shares, howeverthe “Certificates”) and (ii) the uncertificated shares of Company Common Stock (the “Uncertificated Shares”) (but not, that Acquiror shall afford for the avoidance of doubt, the Company RSU Merger Consideration) (such cash, the opportunity “Exchange Fund”). If, for any reason (including losses) the Exchange Fund is inadequate to review any proposed Contract pay the Merger Consideration in respect of the Certificates and the Uncertificated Shares (excluding, for the avoidance of doubt, the Company RSU Merger Consideration), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent prior sufficient to executionpay all such amounts, and Parent and the Surviving Corporation shall accept in any event be liable for the Company’s reasonable comments theretopayment thereof. Prior to All cash deposited with the Closing DateExchange Agent shall only be used for the purposes provided in this Agreement, Acquiror or as otherwise agreed by the Company and Parent before the Effective Time. Promptly after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), Parent shall cause the Exchange Agent to mail send to each holder of Certificates as of immediately prior to the Effective Time (other than Parent or any Subsidiary of Parent) a letter of transmittal, in form and substance reasonably acceptable to the Surviving Corporation, 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 Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. Notwithstanding anything to the contrary in this Agreement, no record holder of Company Stock Uncertificated Shares will be required to deliver an executed letter of transmittal to the Exchange Agent in order to receive the payment that such holder is entitled to receive a portion of the Total Consideration pursuant to Section 3.012.3 with respect of such Uncertificated Shares.
(b) Each former holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the form attached hereto as Exhibit D (case of a “Letter book-entry transfer of Transmittal”) and instructions for use Uncertificated Shares, the Merger Consideration in effecting the surrender respect of the certificates evidencing such Company Stock, in physical Common Stock represented by a Certificate or electronic formUncertificated Share. Until so surrendered or transferred, as the case may be (be, each such Certificate or Uncertificated Share shall represent after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion of Total such Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to such holder. The Exchange Agent shall former holders of Certificates or Uncertificated Shares.
(Ac) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a If any portion of the Total Merger Consideration pursuant is to Section 3.01 be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that has delivered a (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (only ii) the Person requesting such payment shall pay in advance to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the Closing Date, the portion satisfaction of the Total Consideration with respect to Exchange Agent that such Certificate Tax has been paid or is not payable.
(or any Company Stock not represented by a Certificated) so surrendered and the Certificate shall forthwith be canceled; and (B) following After the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion the transfer books of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) closed and Dissenting Shares and subject to Section 3.09) thereafter there shall be deemed from and no further registration of transfers of Shares. If, after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (Certificates or any Company Stock not represented by a Certificate) is Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, it they shall be canceled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article II.
(be) No dividends or other distributions declared or Any portion of the Merger Consideration made after the Effective Time with respect available to the Acquiror Common Stock with a record date Exchange Agent pursuant to Section 2.3(a)that remains unclaimed by former holders of Shares one year after the Effective Time shall be returned to Parent, upon demand, and any such former holder who has not exchanged Shares for the Merger Consideration in accordance with this Section 2.3 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such cancelled Shares without any interest thereon. Notwithstanding the foregoing, none of Parent, the Surviving Corporation or the Exchange Agent shall be liable to any former holder of Shares for any amounts paid to the holder of a public official or any unsurrendered Certificate (Governmental Authority pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, former holders of Shares immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority) Authority shall become, to the extent permitted by applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(df) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 The agreement with respect to such Certificate, the Exchange Agent shall issueprovide that the Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent or, in exchange for such lost, stolen or destroyed Certificateafter the Effective Time, the Closing Consideration Surviving Corporation; provided, that (i) no such investment (including any losses thereon) shall relieve Parent or Non-Accredited Holder Cash Consideration the Exchange Agent from making the payments required by this Article II, (ii) no such investment shall have maturities that could prevent or delay payments to be paid made pursuant to this Agreement and (iii) all such investments shall be in respect (w) short-term direct obligations of the Company Stock formerly represented United States of America, (x) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (y) short-term commercial paper rated the highest quality by either Mxxxx’x Investors Service, Inc. or Standard and Poor’s Ratings Services or (z) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $10 billion. Any interest or income produced by such Certificate in accordance with this Agreementinvestments will be payable to the Surviving Corporation or Parent, as directed by Pxxxxx.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior Following the date hereof and prior to the Closing DateEffective Time, Acquiror Parent shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided. At or before the Effective Time, however, that Acquiror Parent shall afford the Company the opportunity to review any proposed Contract deposit with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior (i) a cash amount in immediately available funds equal to the Closing DateCash Consideration and (ii) the number of shares of Parent Common Stock equal to the Stock Consideration. Promptly after the appointment of the Exchange Agent, Acquiror Parent shall cause the Exchange Agent to mail to each holder of record of Company Stock Shares as of immediately prior to the Effective Time entitled to receive a portion of the Total Aggregate Merger Consideration pursuant to Section 3.012.5, a letter of transmittal (which shall be in the form attached hereto as Exhibit D and substance reasonably acceptable to Parent and the Company) (a “Letter of Transmittal”) and instructions for use in effecting which shall (i) have customary representations and warranties as to title, authorization, execution and delivery, (ii) have a customary release of all claims against Parent and the surrender Company arising out of or related to such holder’s ownership of Company Shares, (iii) specify that delivery shall be effected, and risk of loss and title to the certificates evidencing such Company Stock, in physical or electronic form, as the case may be Shares (the “Certificates”), to the extent any such Company Stock is represented by Shares are certificated, shall pass, only upon proper delivery of the Certificates to the Exchange Agent, (iv) include instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal and (v) permit each Stockholder to allocate, on a Certificateshare-by-share or “block” basis, in exchange those Company Shares exchanged for the right to receive the applicable portion of Total Consideration payable to such holder. The ’s share of the Cash Consideration.
(b) Within two (2) Business Days (but in no event prior to the Effective Time) after the surrender to the Exchange Agent shall of all Certificates held by such holder for cancellation (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (Shares are or were certificated), together with a Letter of Transmittal Transmittal, duly completed and validly executed in accordance with the instructions thereto and customary tax forms that such other documents as may be required pursuant to such instructions, the holder of such Certificates shall be entitled to receive in exchange therefore, and Parent shall direct the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to deliver the Closing DatePer Share Stock Consideration or the Per Share Cash Consideration, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Timeas applicable, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto provisions of Section 2.5 and any customary tax forms that Section 2.6, and the Exchange Agent may reasonably require in connection therewith), issue to the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a CertificateCertificate(s) so surrendered and the Certificate shall forthwith be canceledcancelled. The Exchange Agent shall deliver Until surrendered as contemplated by this Section 2.11, each Certificate entitled to receive the portion of Per Share Stock Consideration or the Total Consideration into which such Company Common Shares and Company Preferred SharesPer Share Cash Consideration, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest Section 2.5 shall be paid or shall accrue on any portion of the Total 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 deemed at all times after the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence represent only the right to receive upon such surrender the portion of Per Share Stock Consideration or the Total Per Share Cash Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agentas applicable, it shall be canceled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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 that 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 is entitled 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate receive in accordance with this Agreement.
(e) The the provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)2.5.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares 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”) shall cease to have any rights as a stockholder of the Company.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided.
(c) As promptly as practicable following the date hereof and in any event not later than twenty (20) Business Days thereafter, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Common Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the a form attached hereto as Exhibit D acceptable to Parent (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Merger Consideration payable pursuant to such holderSection 2.08(b). The Exchange Agent shall shall, no later than the later of (Ai) on the Closing Date, issue to each holder Date or (ii) five (5) Business Days after receipt of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (, together with a Letter of Transmittal (and including, an Option Cancellation Agreement, Warrant Cancellation Agreement, Note Cancellation Agreement and/or Restricted Stock Unit Cancellation Agreement, as applicable) duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior , deliver to the Closing Date, holder of such Certificate the portion number of the Total Consideration shares of Parent Common Stock as provided in Section 2.08(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable consideration deliverable 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 represented shares of Company Common Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.08(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.11.
(bd) No dividends Each Stockholder shall also be entitled to any consideration that may be deliverable in the future in respect of the Shares formerly represented by such Certificate from the Escrow Funds as provided in this Agreement and the Escrow Agreement, 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 Stockholders on the Merger Consideration.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such delivery shall pay to the Exchange Agent any transfer or other distributions declared Tax required as a result of such delivery to a Person other than the registered holder of such Certificate or made after the Effective Time with respect establish to the Acquiror Common Stock with a record date reasonable satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Stockholders twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.11 prior to that time shall thereafter look only to Parent for delivery of the Merger Consideration; provided, that any such portion of the Merger Consideration deliverable from the Escrow Funds shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein. Notwithstanding the foregoing, Parent shall not be liable to any holder of Certificates for any amounts paid to the holder a public official pursuant to applicable abandoned property, escheat or similar Laws. Any shares of any unsurrendered Certificate (or Company Stock not represented by a Certificate) with respect to the Acquiror Parent 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three Stockholders two (32) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(dg) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Parent, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Item 9 Labs Corp.)
Surrender and Payment. (a) Prior At the Effective Time, all Interests outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost and expensesubject to Section 2.9, appoint an exchange agent reasonably acceptable to the Company either (the i) each holder of a certificate formerly representing any Interests (each, a “Exchange AgentCertificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated Interests, such holder shall cease to have any rights as a member of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the First Merger; providedMerger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, however, that Acquiror Holdings shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Interests a letter of transmittal in form and substance reasonably satisfactory to the form attached hereto as Exhibit D parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate 2.8(b). Holdings shall, no later than the later of (only to i) the extent such Company Stock is represented by Closing Date or (ii) five (5) Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Holdings may reasonably require in connection therewith) at least three (3) Business Days prior , deliver to the Closing Date, the holder of such Certificate such holder’s portion of the Total Merger Consideration as provided in Section 2.8(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)cancelled. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Target Company Stock Interests (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Interests) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentHoldings, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.10.
(bd) No dividends Each Target Company Member shall also be entitled to any amounts that may be payable in the future in respect of the Interests formerly represented by such Certificate as provided in this Agreement, at the respective time and subject to the contingencies specified herein and therein. Target Company Members
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings any transfer or other distributions declared Tax required as a result of such payment to a Person other than the registered holder of such Certificate or made after the Effective Time with respect establish to the Acquiror Common Stock with a record date reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Members ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Member who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Target Company Holders three (3) Members two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(dg) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Interests shall be returned to Holdings, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (AIRO Group, Inc.)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging certificates representing Shares (the “Certificates”) for the Merger Consideration (less the Escrow Holdback). At the Effective Time or promptly thereafter (but in no event later than 1 Business Day), Parent will transfer to act the Exchange Agent, as needed, the exchange agent Merger Consideration (less the Escrow Holdback) to be paid in respect of the First Merger; providedShares. At the Effective Time or promptly thereafter, howeverthe Company’s stockholders (each, that Acquiror shall afford a “Stockholder” and collectively, the Company “Stockholders”) will surrender the opportunity Certificates to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, for cancellation together with a letter of transmittal in and instructions (the form attached hereto as Exhibit D (a “Letter of Transmittal”) ), which shall specify that the delivery shall be effected, and instructions risk of loss and title shall pass, only upon proper delivery of the Certificates to the Exchange Agent, for use in effecting the surrender such exchange.
(b) Each holder of the certificates 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 Shares that have been converted into the right to receive the applicable portion of Total Merger Consideration payable less the Escrow Holdback will be entitled to such holder. The receive, upon surrender to the Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (, together with a properly completed Letter of 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 (3) Business Days prior to the Closing DateTransmittal, the portion of Merger Consideration less the Total Consideration with respect to such Certificate (or any Company Stock not Escrow Holdback payable for each Share represented by a such Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive . All such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest funds shall be paid or shall accrue on any portion to the holders of Shares by check or, upon the Total Consideration payable upon surrender request of any Certificate (or such holder and the payment by such holder of any Company Stock not represented applicable fee required by a Certificate)the Exchange Agent, by wire transfer to an account specified in such holder’s respective Letter of Transmittal. Until so surrendered, each outstanding such Certificate (or any Company Stock not represented by a Certificate) that prior to shall represent after the Effective Time represented shares for all purposes only the right to receive such Merger Consideration less the Escrow Holdback.
(c) If any portion of Company Stock (the Merger Consideration less the Escrow Holdback is to be paid to a Person other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) Person in whose name the surrendered Certificate is registered, it shall be deemed from a condition to such payment that the Certificate 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 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 the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the Merger Consideration less the Escrow Holdback provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(be) No dividends Any portion of the Merger Consideration (less the Escrow Holdback) made available to the Exchange Agent pursuant to Section 2.03(a) (and any interest or other distributions declared or made after the Effective Time with respect to the 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 Certificateincome earned thereon) 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining that remains unclaimed by the Company Holders three (3) years after holders of Shares on the first anniversary of the Effective Time (Date shall be returned to Parent, upon demand, and any such holder who has not exchanged Shares for the Merger Consideration less the Escrow Holdback in accordance with this Section 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration less the Escrow Holdback in respect of such Shares without any interest thereon. Notwithstanding the foregoing, 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 such earlier date, immediately similar laws. Immediately prior to such time when the amounts remaining unclaimed by holders of Shares would otherwise escheat to or become property of any Governmental Authority) governmental authority, such unclaimed amounts shall become, to the extent permitted by applicable Lawlaw, the property of Acquiror Parent free and clear of any claims or interest of any Person Persons previously entitled thereto.
(df) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.032.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)upon demand.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, each share of Company Stock issued and outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 1.7, each holder of a certificate formerly representing any share of Company Stock (each, a “Company Stock Certificate”) shall cease to have any rights as a Company stockholder except (other than with respect to any (i) Company Stock to be cancelled and retired in accordance with Section 1.5(a), and (ii) Dissenting Shares) for the right to receive the applicable portion of the Merger Shares attributable to such Company Stock (if any) pursuant to Section 1.5(b) and any distribution or dividend pursuant to Section 1.9.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided.
(c) As promptly as practicable following the date hereof and in any event not later than two (2) Business Days thereafter, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Series AB Preferred Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in substantially the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable the Merger Shares attributable to such holder’s Series AB Preferred Stock pursuant to Section 1.5(b). The Exchange Agent shall shall, no later than the later of (Ai) on the Closing Date, issue to each holder Date or (ii) two (2) Business Days after receipt of record of a Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 transfer to the holder of such Certificate (or any Company Stock not represented by a Certificate) Certificate the applicable portion of the Total Consideration Merger Shares attributable to such holder’s Series AB Preferred Stock pursuant to Section 1.5(b) with respect to such Certificate (or any Company Stock not represented by a Certificate) Certificate so surrendered and the Company Stock Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)cancelled. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) Certificate that prior to the Effective Time represented shares of Company Series AB Preferred Stock (other than for the shares any (i) Company Stock to be canceled pursuant to cancelled and retired in accordance with Section 3.01(d1.5(a), and (ii) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the applicable portion of the Total ConsiderationMerger Shares attributable to such Series AB Preferred Stock pursuant to Section 1.5(b) and any distribution or dividend pursuant to Section 1.9. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled thereto1.6.
(d) If any Certificate shall have been lost, stolen or destroyed, upon portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration Merger Shares is to be paid to a Person other than the Person in respect of whose name the surrendered Company Stock formerly represented by Certificate is registered, it shall be a condition to such payment that such Company Stock Certificate shall be properly endorsed or shall otherwise be in accordance with proper form for transfer. For purposes of this Agreement, “Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Entity (as defined below), unincorporated organization, trust, association or other entity.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Merger Sub shall appoint an exchange as agent reasonably acceptable to the Company (the “Exchange Agent”) a commercial bank or trust company, reasonably acceptable to act as the exchange agent Company, for the purpose of exchanging certificates representing Shares for the Merger Consideration which holders of such certificates are entitled to receive pursuant to this Article 1. Immediately prior to the Effective Time, Merger Sub shall deposit in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract trust with the Exchange Agent Agent, cash or immediately available funds in an aggregate amount equal to the product of: (i) the total number of Shares outstanding immediately prior to executionthe Effective Time (other than the Shares owned by Merger Sub or the Company and any direct or indirect subsidiary of Merger Sub or the Company); multiplied by (ii) the Merger Consideration (such amount being hereinafter referred to as the “Payment Fund”). The Payment Fund shall be invested by the Exchange Agent as directed by Merger Sub (so long as such directions do not impair the rights of the holders of Shares) in Permitted Investments, and any net earnings with respect thereto shall accept be paid to Merger Sub as and when requested by Merger Sub. The Exchange Agent shall, pursuant to irrevocable instructions, make the Company’s reasonable comments theretopayments referred to in Section 1.3(b) out of the Payment Fund. Prior to The Payment Fund shall not be used for any other purpose except as provided herein. Promptly after the Closing DateEffective Time, Acquiror shall Merger Sub will send, or will cause the Exchange Agent to mail send, to each holder of record of Company Stock entitled Shares which immediately prior to receive a portion the Effective Time were outstanding, other than holders of the Total Consideration Shares canceled and retired pursuant to Section 3.01, 1.2(b) hereof: (i) a letter of transmittal for use in such exchange (which shall specify that the form attached hereto as Exhibit D delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Shares to the Exchange Agent); and (a “Letter of Transmittal”ii) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be Shares for payment therefor (the “CertificatesExchange Instructions”). If for any reason (including losses), the Payment Fund is inadequate to pay the amounts to which the holders of record of Shares which, immediately prior to the extent any such Company Stock is represented by a CertificateEffective Time were outstanding (other than holders of Shares canceled and retired pursuant to Section 1.2(b) hereof), Parent shall take all actions necessary to cause the Surviving Corporation promptly to deposit in trust with the Exchange Agent, additional cash sufficient to make all payments required to be made to the holders of Shares which immediately prior to the Effective Time were outstanding (other than holders of Shares canceled and retired pursuant to Section 1.2(b) hereof) and Parent and the Surviving Corporation shall, in exchange any event, be liable for the payment thereof.
(b) Each holder of Shares that have been converted into a right to receive the applicable portion Merger Consideration which holders of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock Shares are entitled to receive a portion pursuant to this Article 1, upon surrender to the Exchange Agent of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (Shares, together with a Letter of Transmittal duly properly completed and validly executed in accordance with the instructions thereto letter of transmittal covering such Shares and customary tax forms that any other documents reasonably required by the Exchange Agent may reasonably require Instructions, will promptly receive the Merger Consideration payable in connection therewith) at least three (3) Business Days prior to respect of such Shares as provided in this Article 1, without any interest thereon, less any required withholding of Taxes, and the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) certificates so surrendered and the Certificate shall forthwith immediately be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from Share shall, at and after the Effective Time, represent for all purposes, to evidence purposes only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (such Merger Consideration except as otherwise provided herein or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stocklaw.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(d) If any Certificate shall have certificate has been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity that fact by the Person claiming such Certificate certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange AgentSurviving Corporation, the posting by such Person of a bond, bond in such reasonable amount as the Company Surviving Corporation may direct, direct as indemnity against any claim that may be made against it with respect to such Certificatecertificate, the Exchange Agent shall issue, issue in exchange for such lost, stolen or destroyed Certificate, certificate the Closing Merger Consideration.
(d) If any portion of the Merger Consideration or Non-Accredited Holder Cash Consideration is to be paid in respect to a Person other than the registered holder of the Company Stock formerly represented Shares surrendered in exchange therefor, it shall be a condition to such payment that Shares 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 as a result of such payment to a Person other than the registered holder of such Shares or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. The Exchange Agent may make any Tax withholdings required by such Certificate in accordance law if not provided with the appropriate documents. For purposes of this Agreement, “Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion After the Effective Time the stock transfer books of the Total Company shall be closed and, thereafter, there shall be no further registration of transfers of Shares. If, after the Effective Time, Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration pursuant to Section 3.03provided for, and in accordance with the Company Optionholders being required to deliver an option cancellation agreement procedures set forth, in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)this Article 1.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a Any portion of the Total Payment Fund that remains unclaimed by the holders of Shares 180 days after the Effective Time (including, without limitation, all interest and other income received by the Exchange Agent in respect of all funds made available to it) shall be returned to the Surviving Corporation, upon demand, and any such holder of Shares who has not exchanged his or her Shares for the Merger Consideration in accordance with this Section 1.3 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration in respect of Shares (subject to abandoned property, escheat and other similar laws) as general creditors thereof. If any Shares shall not have been surrendered prior to two years after the Effective Time (or immediately prior to such earlier date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, the Surviving Corporation shall not be liable to any holder of Shares for an amount paid to a public official pursuant to applicable abandoned property, escheat or other similar laws.
(g) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.031.3(a) to pay for Shares for which dissenters’ rights have been perfected shall be returned to the Surviving Corporation, upon demand made no earlier than 180 days after the Effective Time.
(h) All cash paid upon the surrender for exchange of certificates formerly representing Shares in accordance with the Noteholders being required terms of this Article 1 shall be deemed to deliver their applicable Payoff Letterhave been paid in full satisfaction of all rights pertaining to the Shares exchanged for cash theretofore represented by such certificates.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, appoint an exchange agent Parent shall authorize one or more transfer agent(s) reasonably acceptable to the Company to act as exchange agent hereunder (the “Exchange Agent”). At or prior to the Effective Time, Parent will deliver to Exchange Agent for the benefit of the holders of the outstanding Company Common Stock, Company Warrants, Company Options and Company Notes a cash amount equal to the applicable Merger Consideration. The aggregate amount of funds delivered to Exchange Agent pursuant to the preceding sentence will be the “Exchange Fund.”
(b) Promptly after the Effective Time, subject to act as Section 3.6(d), Exchange Agent will promptly distribute from the Exchange Fund in exchange agent in for a duly executed and properly completed letter of transmittal and surrendered certificates or instruments representing Company Instruments of any individual, corporation, limited liability company, partnership, association, trust or any other entity or organization, including a Governmental Authority (“Person”) (other than Dissenting Stockholders), an aggregate amount equal to (i) with respect to certificates representing Company Common Stock, the First Merger; providedproduct of (A) the Per Share Consideration times (B) the number of shares of Company Common Stock represented by such certificate, however, that Acquiror shall afford (ii) with respect to the Company Notes which have not been converted, the opportunity applicable Per Note Consideration, (iii) with respect to review Company Warrants, the applicable Per Warrant Consideration, and (iv) with respect to the Company Options, the applicable Per Option Consideration.
(c) Promptly after the Effective Time, but in any proposed Contract with the event not later than three Business Days thereafter, Parent will, or instruct Exchange Agent prior to executionto, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail send to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Instruments a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender exchange of the certificates evidencing such Company Stock, Instruments for the applicable Merger Consideration. “Business Day” means any date that is not a Saturday or Sunday or other day on which banks are required or authorized by law to be closed in physical or electronic form, as the case may city of New York. Provision also will be (made for holders of Company Instruments to procure in person immediately after the “Certificates”), Effective Time a letter of transmittal and instructions and to deliver in person immediately after the extent any Effective Time such letter of transmittal and Company Stock is represented by a Certificate, Instruments in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Merger Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Buyer shall (i) appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”” ) to act as for the exchange agent purpose of exchanging certificates representing Company Stock for the Merger Consideration set forth in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract Section 2.7 and (ii) irrevocably deposit with the Exchange Agent prior the Initial Merger Consideration to executionbe paid in respect of shares of Company Stock.
(b) As soon as practicable after the Effective Time, and Buyer shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail send to each holder of record a certificate or certificates which immediately prior to the Effective Time evidenced outstanding shares of Company Stock entitled to receive a portion of (the Total Consideration pursuant to Section 3.01“Certificates” ), a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting such exchange (which shall specify that the surrender delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates evidencing Certificates representing shares of Company Stock to the Exchange Agent).
(c) Company Stockholders, upon surrender to the Exchange Agent of a Certificate or Certificates representing such shares of Company Stock, in physical or electronic formtogether with a properly completed letter of transmittal covering such shares of Company Stock, as the case may will be (the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange for the right entitled to receive the applicable portion of Total Merger Consideration payable to in respect of such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record shares of Company Stock entitled to receive a portion of on the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed terms provided for in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)this Agreement. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented representing shares of Company Stock (other than for that have been converted into the shares right to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and receive the Merger Consideration shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive the Merger Consideration.
(d) If any portion of the Total ConsiderationMerger Consideration is to be paid to a Person other than the registered holder of Company Stock represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and accompanied by all documents required to evidence and effect the transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Company Stock or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(e) After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. If If, after the Effective Time, any Certificate (or any Certificates representing shares of Company Stock not represented by a Certificate) is are presented to the Exchange AgentSurviving Corporation, it they shall be canceled cancelled and exchanged as for the consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(bf) No dividends Buyer and Company acknowledge that any and all Earnout Payments, Milestone Payments, and payments relating to indemnification obligations of Parent, Buyer or other distributions declared or made Merger Sub shall be delivered to the Stockholder Representative as agent and on behalf of the Company Holders, and the Stockholder Representative shall distribute such payments to the Company Holders pursuant to the terms of the Stockholder Representation Agreement.
(g) Any portion of the Merger Consideration that remains unclaimed by any Company Holder (i) 12 months after the Effective Time with respect to the 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 escheatInitial Merger Consideration, 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, and (ii) at 12 months after the appropriate date of any Earnout Payment or (iii) 12 months after the date of either the Wound Closure Milestone or the Orthopedic Milestone Payment, shall be returned to Buyer, upon demand, and any holder who has not exchanged such holder’s shares of Company Stock for the Merger Consideration in accordance with this Section 2.9 prior to that time shall thereafter look only to Buyer for payment dateof the Merger Consideration in respect of such holder’s shares of Company Stock. Notwithstanding the foregoing, neither Buyer, the amount Company nor the Surviving Corporation shall be liable to any holder of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Company Stock for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders Stock three (3) years after the Effective Time (or such earlier date, immediately date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authoritygovernmental entity) shall becomeshall, to the extent permitted by applicable Lawlaw, become the property of Acquiror the remaining Company Shareholders, free and clear of any claims or interest of any Person previously entitled thereto.
thereto and Buyer shall deliver such unclaimed consideration to the Stockholder Representative for distribution to the remaining Company Holders consistent with their Earnout Pro-Rata Portion (d) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity after recalculating such Earnout Pro-Rata Portion without giving effect to ownership by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect holders of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion unclaimed portions of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the CompanyMerger Consolidation).
(fh) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a Any portion of the Total Merger Consideration made available to the Exchange Agent pursuant to Section 3.03, with the Noteholders being required 2.9(a) to deliver their applicable Payoff Letterpay for shares of Company Stock for which appraisal rights have been perfected shall be returned to Buyer upon demand.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares 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”) shall cease to have any rights as a stockholder of the Company and shall have no rights as a stockholder of the Surviving Corporation and such Certificate shall forthwith be cancelled.
(b) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent Exchange Agent, the cost of which shall be borne fifty percent (50%) by Parent and fifty percent (50%) by the Company, reasonably acceptable to the Company to act as the Exchange Agent in the Merger (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with ). Parent or the Exchange Agent shall deduct the foregoing amounts payable by the Company from any Additional Payments, prior to execution, and shall accept distribution to the Company’s reasonable comments thereto. Prior to Equityholders in accordance with Section 2.13.
(c) Promptly following the Closing Date, Acquiror shall cause the Exchange Agent to shall, with the reasonable assistance of the Equityholder Representative, mail to each holder of record of Company Stock entitled to receive a portion Equityholder as of the Total Consideration pursuant to Section 3.01, Closing Date a letter of transmittal in substantially the form attached hereto as Exhibit D (a the “Letter of Transmittal”) and with instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable the consideration, if any, due to such holderholder pursuant to Section 2.06. The Subject to the terms and conditions of this Agreement, the Exchange Agent shall (A) on the Closing Date, issue to each holder as promptly as practical after receipt of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by or a Certificate) (duly completed and signed affidavit of lost certificate in lieu thereof), together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion applicable number of the Total Consideration Parent Merger Shares due to such holder, if any, in each case, pursuant to Section 2.06 and with respect to such Certificate so surrendered (or any Company Stock not represented by a Certificate) so surrendered and the affidavit of lost certificate in lieu thereof), such Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash, stock or other consideration payable or issuable 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 represented shares of Company Common Stock or Preferred Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Considerationapplicable consideration, if any, under Section 2.06 and Section 2.12. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.09.
(bd) No dividends If any portion of the applicable consideration under Section 2.06 is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) 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 transfer or other distributions declared Tax required as a result of such payment to a Person other than the registered holder of such Certificate or made after the Effective Time with respect establish to the Acquiror Common Stock with a record satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(e) Promptly following the date after of this Agreement, the Company shall deliver to each Optionholder any required notices regarding the Merger and Agreement to Exercise Option in the form attached hereto as Exhibit E (an “Option Exercise Agreement”). Each Option that is not exercised prior to the Effective Time shall be paid to canceled without the holder payment of any unsurrendered Certificate (or Company Stock not represented consideration therefor. Promptly following the receipt by a Certificate) with respect to the Acquiror Common Stock issuable Exchange Agent of the Parent Merger Shares, the Exchange Agent shall deliver to such holder hereunder who delivered to the Company a duly completed and executed Option Exercise Agreement prior to the Effective Time the portion of the Parent Merger Shares, if any, to which such Person is entitled pursuant to Section 2.06(b) and Section 2.06(d) and in consideration for accordance with the surrender Parent Merger Shares Spreadsheet, which Parent Merger Shares may be sold pursuant to an effective Registration Statement, and if no such Registration Statement exists, Parent will file a Registration Statement pursuant to Section 5.11.
(f) Promptly following the date of such Certificate this Agreement, the Company shall deliver to each Warrantholder any required notices regarding the Merger and Agreement to Exercise Warrant in the form attached hereto as Exhibit F (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“Warrant Exercise Agreement”). Subject Each Warrant that is not exercised prior to the effect of escheat, tax or other applicable Laws, following surrender Effective Time shall be canceled without the payment of any consideration therefor. Promptly following the receipt by the Exchange Agent of the Parent Merger Shares, the Exchange Agent shall deliver to such Certificate (or Company Stock not represented by a Certificate), there shall be paid holder who delivered to the holder Company a duly completed and executed Warrant Exercise Agreement prior to the Effective Time the portion of the certificates representing shares Parent Merger Shares, if any, to which such Person is entitled pursuant to Section 2.06(b) and Section 2.06(e) and in accordance with the Parent Merger Shares Spreadsheet, which Parent Merger Shares may be sold pursuant to an effective Registration Statement, and if no such Registration Statement exists, Parent will file a Registration Statement pursuant to Section 5.11.
(g) Any portion of Acquiror Common Stock issued in exchange therefor, without interest, the Parent Merger Shares that remains unclaimed six (i6) the amount of dividends months or other distributions with a record date more after the Effective Time and theretofore paid with respect (or, in the case of any payment of Additional Payments, six (6) months or more after the first payment of such amounts) shall be returned to such shares of Acquiror Common Stockthe Equityholder Representative, upon demand, and any such Equityholder who has not exchanged Certificates (iior an affidavit of lost certificate in lieu thereof) (other than Optionholders or Warrantholders who delivered Option Exercise Agreements or Warrant Exercise Agreements, as applicable) in accordance with this Section 2.09 prior to that time shall thereafter look only to the Exchange Agent and the Equityholder Representative for payment of the applicable consideration under Section 2.06; provided, that any funds payable from the Equityholder Representative Expense Fund shall be held and distributed to the Persons entitled thereto in accordance with the terms of this Agreement at the appropriate payment date, respective times and subject to the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender contingencies specified herein and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stocktherein.
(ch) Any Closing Consideration portion of the applicable consideration under Section 2.06 made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, upon demand.
(i) Notwithstanding anything to the contrary contained here, Parent and Non-Accredited Holder Cash Consideration the Surviving Corporation and their Affiliates 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. Any amounts remaining unclaimed by the Company Holders three any Equityholder two (32) years after the Effective Time (or, in the case of Additional Payments, if any, two (2) years after the first payment of such amounts) (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the . The Exchange Agent shall issue, in exchange for deliver any such lost, stolen funds to Parent within fifteen (15) Business Days after the applicable two (2)-year anniversary by wire transfer or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementimmediately available funds.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (OncoCyte Corp)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Buyer shall (i) appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as for the exchange agent purpose of exchanging certificates representing Company Stock for the Merger Consideration set forth in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract Section 2.7 and (ii) irrevocably deposit with the Exchange Agent prior the Initial Merger Consideration to executionbe paid in respect of shares of Company Stock.
(b) As soon as practicable after the Effective Time, and Buyer shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail send to each holder of record a certificate or certificates which immediately prior to the Effective Time evidenced outstanding shares of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be (the “Certificates”), a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates representing shares of Company Stock to the extent any Exchange Agent).
(c) Company Stockholders, upon surrender to the Exchange Agent of a Certificate or Certificates representing such shares of Company Stock is represented by Stock, together with a Certificateproperly completed letter of transmittal covering such shares of Company Stock, in exchange for the right will be entitled to receive the applicable portion of Total Merger Consideration payable to in respect of such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record shares of Company Stock entitled to receive a portion of on the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed terms provided for in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)this Agreement. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented representing shares of Company Stock (other than for that have been converted into the shares right to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and receive the Merger Consideration shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive the Merger Consideration.
(d) If any portion of the Total ConsiderationMerger Consideration is to be paid to a Person other than the registered holder of Company Stock represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and accompanied by all documents required to evidence and effect the transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Company Stock or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(e) After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. If If, after the Effective Time, any Certificate (or any Certificates representing shares of Company Stock not represented by a Certificate) is are presented to the Exchange AgentSurviving Corporation, it they shall be canceled cancelled and exchanged as for the consideration provided for, and in accordance wit h the procedures set forth, in this Section 3.04(a)Article 2.
(bf) No dividends Buyer and Company acknowledge that any and all Earnout Payments, Milestone Payments, and payments relating to indemnification obligations of Parent, Buyer or other distributions declared or made Merger Sub shall be delivered to the Stockholder Representative as agent and on behalf of the Company Holders, and the Stockholder Representative shall distribute such payments to the Company Holders pursuant to the terms of the Stockholder Representation Agreement.
(g) Any portion of the Merger Consideration that remains unclaimed by any Company Holder (i) 12 months after the Effective Time with respect to the 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 escheatInitial Merger Consideration, 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, and (ii) at 12 months after the appropriate date of any Earnout Payment or (iii) 12 months after the date of either the Wound Closure Milestone or the Orthopedic Milestone Payment, shall be returned to Buyer, upon demand, and any holder who has not exchanged such holder’s shares of Company Stock for the Merger Consideration in accordance with this Section 2.9 prior to that time shall thereafter look only to Buyer for payment dateof the Merger Consideration in respect of such holder’s shares of Company Stock. Notwithstanding the foregoing, neither Buyer, the amount Company nor the Surviving Corporation shall be liable to any holder of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Company Stock for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders Stock three (3) years after the Effective Time (or such earlier date, immediately date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authoritygovernmental entity) shall becomeshall, to the extent permitted by applicable Lawlaw, become the property of Acquiror the remaining Company Shareholders, free and clear of any claims or interest of any Person previously entitled thereto.
thereto and Buyer shall deliver such unclaimed consideration to the Stockholder Representative for distribution to the remaining Company Holders consistent with their Earnout Pro-Rata Portion (d) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity after recalculating such Earnout Pro-Rata Portion without giving effect to ownership by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect holders of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion unclaimed portions of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the CompanyMerger Consolidation).
(fh) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a Any portion of the Total Merger Consideration made available to the Exchange Agent pursuant to Section 3.03, with the Noteholders being required 2.9(a) to deliver their applicable Payoff Letterpay for shares of Company Stock for which appraisal rights have been perfected shall be returned to Buyer upon demand.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Angiotech Pharmaceuticals Inc)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, Buyer shall appoint a depositary (the "Depositary") for the purpose of exchanging certificates representing Shares for the Merger Consideration. The Depositary shall at its sole cost all times be a commercial bank having a combined capital and expense, appoint an exchange agent reasonably acceptable surplus of at least $100,000,000. Buyer shall deposit with the Depositary immediately prior to the Company (Effective Time, the “Exchange Agent”) Merger Consideration to act as be paid in respect of the exchange agent in Shares. For purposes of determining the First Merger; providedMerger Consideration to be so paid, howeverBuyer shall assume that no holder of Shares will perfect his right to appraisal of his Shares. Promptly after the Effective Time, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to executionBuyer will send, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall or will cause the Exchange Agent Depositary to mail send, but in no event later than three Business Days after the Effective Time, to each holder of record of Company Stock entitled to receive a portion of Shares at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal for use in such exchange (which shall specify that the form attached hereto as Exhibit D (a “Letter delivery shall be effected, and risk of Transmittal”loss and title shall pass, only upon proper delivery of the certificates representing Shares to the Depositary) and instructions for use in effecting the surrender of the certificates 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, Shares in exchange for the Merger Consideration.
(b) Each holder of Shares that have been converted into a right to receive the applicable portion Merger Consideration, upon surrender to the Depositary of Total Consideration payable to a certificate or certificates properly representing such holder. The Exchange Agent shall (A) on the Closing DateShares, issue to each holder together with a properly completed letter of record of Company Stock transmittal covering such Shares, will be entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed payable in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and such certificate shall, after the Effective Time, represent for all purposes, to evidence only the right to receive the portion of the Total such Merger Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Merger Consideration or Non-Accredited Holder Cash Consideration is to be paid in respect to a Person other than the registered holder of the Company Stock formerly Shares represented by the certificate or certificates surrendered in exchange therefor, it shall be a condition to such Certificate payment that the certificate or certificates so surrendered shall be properly endorsed or otherwise be in accordance with proper form for transfer and that the Person requesting such payment shall pay to the Depositary any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Shares or establish to the satisfaction of the Depositary that 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.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Cellular Communications of Puerto Rico Inc /De/)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided.
(b) As promptly as practicable following the date hereof and in any event not later than three Business Days thereafter, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to (i) each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01Equityholder, a letter of transmittal in substantially the form attached hereto as Exhibit D C (a “Letter of Transmittal”), and (ii) and each Company Equityholder other than an Excluded Equityholder, a lock-up agreement in substantially the form attached as Exhibit D (a “Lock-Up Agreement”), and, as applicable, instructions for use each in effecting the surrender of the certificates 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, Securities in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate 2.08(b). Except as set forth in Section 2.10(c), the Exchange Agent shall, no later than the later of (only to i) the extent such Company Stock is represented by a CertificateClosing Date or (ii) (together with five Business Days after receipt of a Letter of Transmittal and Lock-Up Agreement duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith, pay to such Company Equityholder (x) at least three (3) Business Days prior a cash amount equal to the Estimated Closing Date, the portion Cash Merger Consideration multiplied by such Company Equityholder’s Allocation Percentage and (y) shares of Parent Stock representing such Company Equityholder’s Allocation Percentage of the Total Consideration with respect to such Certificate (or any Company Closing Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliveryMerger Consideration. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of cash payable by the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)Exchange Agent. Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) Security shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.08(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) Security is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.10.
(bc) No dividends or other distributions declared or made after For any cash amount to be paid to employees of the Effective Time with Company who are United States Persons, such amount shall be paid to and processed through the Surviving Entity’s payroll system. With respect to the Acquiror Common Stock 102 In-Money Options and 3(i) In-Money Options any consideration payable in accordance with a record date after the Effective Time this Section 2.10 shall be paid to the 102 Trustee to be held and released in accordance with Section 102 of the Ordinance and the regulations and rules promulgated thereunder the Option Tax Ruling (or any other approval or instructions from the ITA received either by the Company or Parent, including the Interim Options Ruling). The 102 Trustee shall withhold any amounts required in accordance with the applicable Law (including the provisions of Section 102 of the Ordinance and the regulations and rules promulgated thereunder, or any other approval or instructions from the ITA received either by the Company or Parent, including the Interim Options Ruling) prior to release of funds to such holder. For the avoidance of doubt, any amount released from the Escrow Fund and any Contingent Amount to be paid to a 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 escheat102 Stock, 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 102 Trustee to be held and released in accordance with Section 102 of the certificates representing shares of Acquiror Common Stock issued in exchange therefor, without interest, Ordinance and the regulations and rules promulgated thereunder the Option Tax Ruling (i) or any other approval or instructions from 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed ITA received either by the Company Holders three (3) years after or Parent, including the Effective Time (or such earlier dateInterim Options Ruling), immediately prior and subject to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled withholding pursuant thereto.
(d) If any Certificate Unless otherwise provided herein, no interest shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect or accrued on the Merger Consideration for the benefit of the Company Stock formerly represented by such Certificate in accordance with this AgreementEquityholders.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (OptimizeRx Corp)
Surrender and Payment. (a) Prior to Except as set forth in the Closing Datefollowing sentence, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company shall act as paying agent in effecting the exchange of Company Stock provided for herein. At the Closing, Buyer shall pay (the “Exchange Agent”or cause to be paid) by wire transfer of immediately available funds:
(i) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each Specified Stockholder on behalf of each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic formas set forth on Section 2.04(a)(i) of the Company Disclosure Schedule, as the case may be (the “Certificates”), who has duly executed and delivered to the extent any such Company Stock is represented by a CertificateCompany, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall no later than two (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (32) Business Days prior to the Closing Date, a letter of transmittal (which shall specify that the portion delivery shall be effected, and risk of loss and title shall pass, only upon proper (x) delivery of the Total certificates representing shares of Company Stock (the “Certificates”) or (y) transfer of the uncertificated shares of Company Stock (the “Uncertificated Shares”) to the Company) in the form set forth on Exhibit F hereto (each, a “Letter of Transmittal”) and the Certificates or Uncertificated Shares in respect therefore, an amount in cash (in U.S. dollars) equal to the amount of the aggregate Per Share Closing Date Consideration for the total shares of Company Stock represented thereby, in accordance with respect the instructions included in the Letter of Transmittal of the applicable Specified Stockholder;
(ii) to the Company, an amount in cash (in U.S. dollars) equal to the remainder of the Aggregate Closing Consideration payable to the other holders of Company Stock, Company Stock Options and Company Restricted Shares to the account (or accounts) specified by the Company, to be held in a separate segregated account, designated as such, for the sole purpose of disbursement to such Certificate holders pursuant to this Section 2.04;
(or any iii) to the Indemnity Escrow Agent, an amount in cash equal to U.S. $5,000,000 less the amount of all interest credited on the Deposit Escrow Amount through the date of the release of the Deposit Escrow Amount by the Deposit Escrow Agent into the Indemnity Escrow Fund (the “Indemnity Escrow Amount Balance”), for deposit into the Indemnity Escrow Fund; and
(iv) to an account designated by the Stockholder Representative, an amount in cash equal to U.S. $2,000,000 (the “Stockholder Representative Reserve”). Promptly following the date hereof, the Company Stock not represented by a Certificateshall make the Letter of Transmittal available to all holders of Company Stock.
(b) so surrendered and the Certificate shall forthwith be canceled; and (B) following After the Effective Time, with respect to any holder upon surrender of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant Certificates or Uncertificated Shares to the preceding clause (A)Company, no later than three (3) Business Days after receipt of a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal Transmittal, duly completed and validly executed and delivered in accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require in connection therewith)thereto, issue to the holder of such Certificate (or any Uncertificated Shares shall be entitled to receive, from the Company, in exchange therefor, the aggregate Per Share Merger Consideration for such Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Sharesin cash, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in in, and subject to, the Spreadsheetprovisions of this Agreement, electronically through book entry-delivery. Unless otherwise provided hereinincluding Section 2.02(a), no interest and such Certificates or Uncertificated Shares shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)cancelled. Until so surrenderedsurrendered as contemplated by, and in accordance with, this Section 2.04, each outstanding Certificate (or Uncertificated Shares shall be deemed at any Company Stock not represented by a Certificate) that prior to time after the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence represent only the right to receive the aggregate Per Share Merger Consideration, for such Company Stock in cash, as set forth in, and subject to, the provisions of this Agreement, including Section 2.02(a).
(c) If any portion of the Total ConsiderationPer Share 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 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 or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Company any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Company that such tax has been paid or is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. If If, after the Effective Time, any Certificate (Certificates or any Company Stock not represented by a Certificate) is Uncertificated Shares are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the Per Share Merger Consideration provided for, and in accordance with the procedures set forth in, this Agreement, including Section 3.04(a2.02(a).
(be) No dividends or other distributions declared or Any portion of the Aggregate Closing Consideration made after the Effective Time with respect available to the Acquiror Common Company pursuant to Section 2.04(a) that remains unclaimed by the holders of shares of Company Stock with a record date six (6) months after the Effective Time shall be returned to Buyer, upon demand, and any holder who has not exchanged shares of Company Stock for the Per Share Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to the Company for payment of the Per Share Merger Consideration, as set forth in, and subject to, the provisions of this Agreement, including Section 2.02(a), in respect of such shares without any interest thereon. Notwithstanding the foregoing, Buyer shall not be liable to any holder of shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) Promptly after the date hereof, the Company shall furnish to each holder of any unsurrendered Certificate (or a Company Stock not represented by Option and each holder of a CertificateCompany Restricted Share, a notice and consent (each, an “Equity Award Notice”) in the form attached hereto as Exhibit G. The Company shall pay to each former holder of a Company Stock Option and each former holder of a Company Restricted Share an amount in cash calculated in accordance with Section 2.09(a)(i) with respect to the Acquiror Common each Company Stock issuable to Option held by such holder hereunder at Closing and an amount in consideration for the surrender of such Certificate (or Company Stock not represented by a Certificatecash calculated in accordance with Section 2.09(b)(i) 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 each Company Restricted Share held by such shares holder at Closing, in each case, through a special payroll of Acquiror 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 a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required effected on the Closing Date. Buyer shall be responsible for ensuring that all payments to be made to each holder of a Company Stock Option and each holder of a Company Restricted Share pursuant to this Agreement are made by the Company or the Exchange Agent, the posting by such Person of a bond, in such reasonable amount Surviving Corporation (as the Company 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 Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate applicable) in accordance with this Agreement.
(e) The provisions , and Buyer shall be liable to each holder of this Section 3.04 shall apply, mutatis mutandis, a Company Stock Option and each holder of a Company Restricted Share for any failure by the Surviving Corporation to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, discharge such payment obligations in accordance with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)terms hereof.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Amc Entertainment Holdings, Inc.)
Surrender and Payment. (a) Prior At the Effective Time, all Shares outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost subject to Section 2.11, each holder of a certificate formerly representing any Shares (each, a “Share Certificate”) shall cease to have any rights as a shareholder of the Company.
(b) As promptly as practicable following the receipt of the Requisite Company Vote and expensein any event, appoint an exchange agent reasonably acceptable prior to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; providedClosing, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Shares a letter of transmittal in the form attached hereto as Exhibit D to be negotiated in good faith between Parent and the Company and agreed to prior to the Closing (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Share Certificates in exchange for the certificates evidencing such Company Stockapplicable portion of Merger Consideration pursuant to Section 2.10(b). The Exchange Agent shall, in physical no later than the later of (A) the third Business Day following the Closing Date, or electronic form(B) five (5) Business Days after receipt of a Share Certificate or Lost Stock Affidavit, as the case may be (the “Certificates”)be, to the extent any such Company Stock is represented by a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with (i) a Letter of Transmittal and (ii) a Lock-Up Agreement effective as of the Effective Time, each duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior , pay to the Closing Date, the portion holder of the Total Consideration Shares represented by such Share Certificate or Lost Stock Affidavit, as the case may be, a cash amount as provided in Section 2.10(b) with respect to such Share Certificate (or any Company Stock not represented by a Certificate) so surrendered or delivery of Lost Stock Affidavit, as the case may be, and the any such Share Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash payable upon surrender of any Certificate (or any Company Stock not represented by a Share Certificate). Until so surrendered, each outstanding Share Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock Shares (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.10(b). If If, after the Effective Time, any Share Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock2.13.
(c) Any Each Shareholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by a Share Certificate from the Post-Closing Consideration Adjustment Escrow Shares Funds, as provided for in this Agreement and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after Escrow Agreement, at the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, respective times and subject to the extent permitted by applicable Lawcontingencies specified herein and therein. Unless otherwise provided herein, no interest shall be paid or accrued for the property benefit of Acquiror free and clear of any claims or interest of any Person previously entitled theretoShareholders on the Merger Consideration.
(d) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Share Certificate is registered, it shall be a condition to such payment that (A) such Share Certificate shall have been lostbe properly endorsed or shall otherwise be in proper form for transfer, stolen or destroyedwith an accompanying Letter of Transmittal to the same effect, upon the making of an affidavit of loss and indemnity by (B) the Person claiming requesting such Certificate payment shall pay to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for any transfer or other Tax required as a result of such lost, stolen payment to a Person other than the registered holder of such Share Certificate or destroyed Certificate, establish to the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect reasonable satisfaction of the Company Stock formerly represented by Exchange Agent that such Certificate in accordance with this AgreementTax has been paid or is not payable.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a Any portion of the Total Closing Merger Consideration that remains unclaimed by the Securityholders twelve (12) months after the Effective Time shall be automatically returned to Parent, and any such Securityholder who has not exchanged Share Certificates or delivered a Lost Stock Affidavit for the Merger Consideration in accordance with this Section 2.13 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration (subject to abandoned property, escheat or other similar Law) as general creditors thereof with respect to the payment of any Merger Consideration that may be payable upon surrender of any Share Certificates held by such holders, as determined pursuant hereto, without any interest thereon; provided, that any such portion of the Merger Consideration payable from the Post-Closing Adjustment Escrow Shares Fund shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement and on account of the Post-Closing Adjustment, at the respective times and subject to the contingencies specified herein and therein. Notwithstanding the foregoing, Parent shall not be liable to any holder of Share Certificates for any amounts paid to a public official pursuant to Section 3.03applicable abandoned property, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)escheat or similar Laws.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a Any portion of the Total Merger Consideration pursuant made available to Section 3.03the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, with the Noteholders being required to deliver their applicable Payoff Letterupon demand.
Appears in 1 contract
Samples: Merger Agreement (ChaSerg Technology Acquisition Corp)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Payment Agent”) to act for the purpose of acting as the exchange payment agent in the First Merger; provided. Promptly following the Effective Time, however, that Acquiror Parent shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, deposit and shall accept the Company’s reasonable comments thereto. Prior make available to the Closing Date, Acquiror shall cause Payment Agent the Exchange Agent Merger Consideration to mail to each holder be paid in respect of record (i) the certificates representing shares of Company Common Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be (the “Certificates”) and (ii) the uncertificated shares of Company Common Stock (the “Uncertificated Shares”) (but not any Merger Consideration in respect of any Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company Option Merger Consideration, the Company RSU Merger Consideration or the Company Restricted Share Merger Consideration) (the “Payment Fund”). If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares of Company Common Stock shall be entitled under Section 1.3(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit (or cause to be deposited) in trust additional cash with the Payment Agent sufficient to make all payments required under this Agreement (but not any Merger Consideration in respect of any Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company Option Merger Consideration, the Company RSU Merger Consideration or the Company Restricted Share Merger Consideration). All cash deposited with the Payment Agent shall only be used for the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Effective Time. Any income from investment of the Payment Fund will be payable to the extent any such Company Stock is represented by a CertificateSurviving Corporation. Promptly after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), in exchange for the right Surviving Corporation shall cause the Payment Agent to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue send to each holder of record shares of Company Common Stock entitled at the Effective Time (other than the Company, Parent, Merger Subsidiary, any other Subsidiary of Parent, any Company Subsidiary, or holders of Dissenting Shares who have not subsequently withdrawn or lost their rights of appraisal), whether represented by Certificates or Uncertificated Shares, a letter of transmittal, in form and substance reasonably acceptable to receive a portion the Surviving Corporation, 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 Total Certificates or transfer of the Uncertificated Shares to the Payment Agent) for use in the exchange of such shares for Merger Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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(a1.3(b).
(b) No dividends Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration pursuant to and in accordance with Section 1.3(a) shall be entitled to receive, upon (i) surrender to the Payment Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Payment Agent (or such other distributions declared evidence, if any, of transfer as the Payment Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration in respect of the Company Common Stock represented by a Certificate or made Uncertificated Share; provided, that receipt of an “agent’s message” shall be deemed to be an express acknowledgement that the holder of such Uncertificated Shares has received and agrees to be bound by the terms of the letter of transmittal (and shall be deemed to have delivered an executed copy thereof). Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration, and any holder of such shares of Company Common Stock shall cease to have any rights with respect thereto except to receive the Merger Consideration pursuant to Section 1.2(a). No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of Certificates or 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 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 or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay in advance to the Payment Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Payment Agent that such Tax has been paid or is not payable.
(d) At the Effective Time, the stock transfer books of the Company shall be closed with respect to the Acquiror all shares of Company Common Stock outstanding immediately prior to the Effective Time and there shall be no further registration of transfers of shares of Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Payment Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with a record date the procedures set forth, in this Article I.
(e) Any portion of the Merger Consideration made available to the Payment Agent pursuant to Section 1.3(a) that remains unclaimed by the holders of shares of Company Common Stock one year after the Effective Time shall be returned to Parent, upon demand, and thereafter any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 1.3 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration, in respect of such shares without any interest thereon. Notwithstanding the foregoing, none of Parent, the Surviving Corporation or the Payment Agent shall be liable to any holder of shares of Company Common Stock for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Law. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders three (3) Common Stock two years after the Effective Time (or such earlier dateor, if earlier, immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(df) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by Merger Consideration made available to the Person claiming such Certificate Payment Agent pursuant to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid Section 1.4 in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Parent, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Bazaarvoice Inc)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). As of or prior to act as the exchange agent in the First Merger; providedEffective Time, however, that Acquiror Parent shall afford the Company the opportunity make available to review any proposed Contract with the Exchange Agent prior Agent, as needed, the aggregate Merger Consideration to executionbe paid pursuant to Section 2.02. Promptly after the Effective Time (but not later than five (5) Business Days after the Effective Time), and Parent shall accept the Company’s reasonable comments thereto. Prior to the Closing Datesend, Acquiror or shall cause the Exchange Agent to mail send, to each holder of record shares of Company Stock entitled to receive a portion as of the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal (which will be in customary form and reviewed by the form attached hereto as Exhibit D (a “Letter of Transmittal”Company prior to delivery thereof) 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 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 certificates evidencing Merger Consideration.
(b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration in respect of the Company Stock, in physical Stock represented by a Certificate or electronic formUncertificated Share. Until so surrendered or transferred, as the case may be (be, each such Certificate or Uncertificated Share shall represent after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion of Total Consideration payable to such holderMerger Consideration. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate or Uncertificated Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article 2, each Certificate or Certificates so surrendered shall accrue on immediately be canceled.
(c) If any portion of the Total Merger Consideration payable 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 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 or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(d) All Merger Consideration paid upon the surrender of any Certificate (Certificates 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 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 Effective Time represented shares of Company Stock (other than for formerly represented by such Certificate or Uncertificated Shares. After the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) Effective Time, there shall be deemed from and no further registration of transfers of shares of Company Stock. If, after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (Certificates or any Company Stock not represented by a Certificate) is Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, it they shall be canceled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(be) No dividends or other distributions declared or Any portion of the aggregate Merger Consideration made after the Effective Time with respect available to the Acquiror Common Exchange Agent pursuant to Section 2.03(a) that remains unclaimed by the holders of shares of Company Stock with a record date twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this Section 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Stock for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders three Stock two (32) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(df) If Any portion of the aggregate Merger Consideration made available to the Exchange Agent pursuant to Section 2.06 in respect of any Certificate Dissenting Shares shall have been lost, stolen or destroyedbe returned to Parent, upon the making demand.
(g) The Surviving Corporation shall pay all charges and expenses, including those of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, connection with the Company Optionholders being required to deliver an option cancellation agreement in lieu exchange of a Certificate (in a form to be mutually agreed by shares for the Acquiror and the Company)Merger Consideration.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Alloy Inc)
Surrender and Payment. (a) Prior Upon the delivery to the Closing Date, Acquiror shall, at its sole cost Parent of a letter of transmittal mutually agreeable to Parent and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and such other customary tax forms that the Exchange Agent documents as may reasonably require in connection therewith) at least three (3) Business Days prior be required pursuant to the Closing Datesuch instructions, the Member for which such Letter of Transmittal is associated shall be entitled to receive in exchange thereof the then-applicable portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented Merger Consideration, as determined by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective TimeSection 2.07, with respect after giving effect to any holder of record of Company Stock entitled to receive a portion of Tax withholdings or deductions required by Applicable Law.
(b) Parent or the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred SharesSurviving Company, as applicable, have been converted shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to Section 3.01(a) (after giving effect this Agreement to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by Person who was a Certificate). Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that Member immediately prior to the Effective Time represented shares such amounts as the Surviving Company is required to deduct and withhold with respect to the making of Company Stock such payment under the Code, or any provision of state, local, or foreign Applicable Law. To the extent that amounts are so withheld by Parent or the Surviving Company, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Members in respect of which or whom such deduction and withholding was made by Parent or the Surviving Company.
(other than for c) All Merger Consideration paid or payable in accordance with the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) terms hereof shall be deemed to have been paid or payable in full satisfaction of all rights pertaining to the Membership Interests, and from and after the Effective Time, for all purposes, to evidence only there shall be no further creation or transfers of Membership Interests on the right to receive the portion books of the Total ConsiderationSurviving Company. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Membership Interests are presented to the Exchange AgentSurviving Company, it they shall be canceled cancelled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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 StockMerger Consideration provided for, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with the procedures set forth, in Article II and Article III and elsewhere in this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing Date, Acquiror shallParent shall appoint a nationally recognized bank, at its sole cost and expense, appoint an exchange trust company or other agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange paying agent in for the First Merger; providedMerger (the “Paying Agent”) and enter into a paying agent agreement, however, that Acquiror shall afford the Company the opportunity reasonably acceptable to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto, with such agent for the purpose of exchanging for the Merger Consideration as promptly as practicable after the Effective Time (i) certificates representing Company Common Shares (the “Certificates”) or (ii) uncertificated Company Common Shares (the “Uncertificated Shares”). Prior to the Closing DateEffective Time, Acquiror Parent shall make available to the Paying Agent the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares, and such aggregate Merger Consideration shall not be used for any purpose other than to fund payments due pursuant to Section 2.02 and this Section 2.03. Except as set forth in Section 2.05, as promptly as practicable after the Effective Time (but no later than two Business Days thereafter), Parent shall send, or shall cause the Exchange Paying Agent to mail send, to each holder of record of Company Stock entitled to receive a portion of Common Shares at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions (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 upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in effecting such exchange.
(b) Each holder of Company Common Shares that have been converted into the right to receive the Merger Consideration in accordance with Section 2.02 will be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the certificates evidencing Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration payable for each Company Stock, in physical Common Share represented by a Certificate or electronic formfor each Uncertificated Share (less any applicable withholding). Until so surrendered or transferred, as the case may be (be, each such Certificate or Uncertificated Share will represent from and after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion of Total Consideration payable to such holderMerger Consideration. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall will be paid or shall will accrue on any portion of the Total Merger Consideration payable upon surrender of any 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 such payment that (i) either such Certificate shall be properly endorsed or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding Certificate shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (or any Company Stock not represented by a Certificateii) that prior the Person requesting such payment shall pay to the Paying Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable.
(d) At the Effective Time represented shares Time, the share transfer books of the Company will be closed, and there will be no further registration of transfers of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and Common Shares. If, after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (Certificates or any Company Stock not represented by a Certificate) is Uncertificated Shares are presented to the Exchange Surviving Corporation or the Paying Agent, it shall they will be canceled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2, including subject to applicable Law in the case of Dissenting Company Shares.
(be) No dividends Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.03(a) (and any interest or other distributions declared or made income earned thereon) that remains unclaimed by the holders of Company Common Shares 12 months after the Effective Time will be returned to Parent, and any such holder who has not exchanged any Company Common Share for the Merger Consideration in accordance with this Section 2.03 prior to that time will thereafter look only to Parent for payment of the Merger Consideration in respect of such Company Common Share without any interest thereon (subject to abandoned property escheat or similar Applicable Law). Notwithstanding the foregoing, none of Parent, the Surviving Corporation or the Paying Agent will be liable, including to any holder of Company Common Shares for Merger Consideration delivered to a Governmental Authority pursuant to any applicable abandoned property, escheat or similar Applicable Law. If any Certificate shall not have been surrendered or Uncertificated Share shall not have been transferred prior to the Acquiror Common Stock with a record date after the Effective Time shall be paid to the holder of on which 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Merger Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become the property of any Governmental Authority) shall become, then any such Merger Consideration will, to the extent permitted by applicable Applicable Law, become the property of Acquiror Parent, free and clear of any all 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior No later than five (5) Business Days prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror Parent shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail send to each record holder of record shares of Company Stock entitled at the Effective Time, 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 Company Certificates to Parent) for use in such exchange.
(b) Upon surrender by a Company Stockholder of all of his, her or its Company Certificates to Parent together with a duly completed and validly executed Letter of Transmittal, each such holder shall be entitled, following the Effective Time, to receive a number of shares of Parent Common Stock equal to the Number of Parent Shares Per Holder for such holder plus the right to receive a portion of the Total Cash Consideration pursuant in accordance with the terms of Section 3.7. Until so surrendered and subject to the terms set forth in Section 3.013.3, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing each such Company Stock, in physical or electronic form, as Certificate shall represent after the case may be (the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion shares of Total Consideration Parent Common Stock payable to such holder. The Exchange Agent shall (A) on in respect thereof plus the Closing Date, issue to each holder of record of Company Stock entitled right to receive a portion of the Total Cash Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and customary tax forms that terms of Section 3.7.
(c) All consideration paid upon the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record surrender of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed Certificates in accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require terms hereof shall be deemed to have been paid in connection therewith), issue full satisfaction of all rights pertaining to the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) formerly represented by such Company Certificate, and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only there shall be no further registration of transfers of shares of Company Stock on the right to receive the portion stock transfer books of the Total ConsiderationSurviving Corporation. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled cancelled and exchanged as for the shares of Parent Common Stock plus the right to receive a portion of the Cash Consideration in accordance with the terms of Section 3.7 provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 3.
(bd) No dividends or other distributions declared or made after the Effective Time with respect Parent shall not be liable to the Acquiror Common any holder of shares of Company Stock with a record date after the Effective Time shall be for any consideration paid to the holder of any unsurrendered Certificate (a Governmental Authority pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders three Stock two (32) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall automatically become, to the extent permitted by applicable Law, the property of Acquiror Parent 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions shares of Parent Common Stock to be issued to the Company Stockholders pursuant to this Article 3 will be issued in a transaction exempt from registration under (i) the Securities Act, by reason of Section 3.04 shall apply4(2) thereof and Rule 506 of Regulation D thereunder, mutatis mutandisand (ii) applicable state securities Laws. Such shares will not, at the Effective Time, have been registered under the Securities Act or any applicable state securities Laws, and no such shares may be sold or otherwise transferred unless (i) the sale or other transfer of such shares is registered under the Securities Act, (ii) the holder of such shares delivers to Parent an opinion of counsel, in form and substance reasonably acceptable to Parent and its counsel, to Company Optionholders entitled the effect that such shares have been sold or otherwise transferred pursuant to a portion exemptions from the registration requirements of the Total Consideration Securities Act and applicable state securities Laws, or (iii) the holder of such shares provides Parent and its counsel with reasonable assurance, as set forth in customary written documentation executed by such holder and its broker, that such shares have been sold or otherwise transferred pursuant to Section 3.03, Rule 144 under the Securities Act (or a successor rule thereto). The shares of Parent Common Stock to be issued to the Company Stockholders pursuant to this Article 3 shall be represented by stock certificates that are countersigned by the transfer agent for the Parent Common Stock and bear a restrictive legend (and are subject to stop-transfer instructions) consistent with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)foregoing.
(f) The provisions No fractional shares of this Section 3.04 Parent Common Stock shall applybe issued in connection with the Merger, mutatis mutandis, to Noteholders and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Stock who would otherwise be entitled to receive a portion fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share and upon surrender of such holder’s Company Certificate(s), be paid in cash the Total Consideration pursuant dollar amount (rounded to Section 3.03the nearest whole cent), with without interest, determined by multiplying (i) such fraction, by (ii) the Noteholders being required to deliver their applicable Payoff LetterClosing Share Value.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shallParent shall appoint Computershare Trust Company, at its sole cost and expense, appoint an N.A. as the exchange agent reasonably acceptable (or such other nationally recognized exchange agent agreed to between the Company parties hereto) (the “Exchange Agent”) to act as for the exchange agent in purpose of exchanging for the First MergerMerger Consideration certificates representing shares of Company Common Stock (the “Certificates”); provided, however, that Acquiror any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock. At or prior to the Effective Time, and except with respect to per share Merger Consideration payable pursuant to Company Restricted Stock Awards (which are governed by Section 2.06(b)), Parent shall afford the Company the opportunity deposit, or shall cause to review any proposed Contract be deposited, with the Exchange Agent prior the aggregate per share Merger Consideration (the “Payment Fund”). To the extent such fund diminishes for any reason below the level required to executionmake prompt payment of the Merger Consideration, Parent shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable hereunder, and following any losses Parent shall accept the Company’s reasonable comments thereto. Prior promptly provide additional funds to the Closing DateExchange Agent in the amount of any such losses, Acquiror (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than 30 days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund, and any amounts in excess of the amounts payable hereunder shall be promptly returned to either Parent or the Surviving Corporation, as directed by Parent. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock and the payment of the Merger Consideration in respect of such shares of Company Common Stock.
(b) Promptly after the Effective Time, and in any event no later than three Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to mail send, to each record holder of record shares of Company Common Stock entitled to receive a portion of at the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Effective Time whose shares were converted into the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered 2.03(a) (other than shares of Company Common Stock subject to Company Restricted Stock Awards) a Certificate (only letter of transmittal and instructions in forms reasonably satisfactory to the extent Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.08) to the Exchange Agent) for use in such exchange. Each holder of shares of Company Common Stock is that have been converted into the right to receive the Merger Consideration (other than shares of Company Common Stock subject to Company Restricted Stock Awards) shall be entitled to receive the Merger Consideration in respect of the shares of Company Common Stock represented by a Certificate promptly upon (i) surrender to the Exchange Agent of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with letter of transmittal and such other documents as may reasonably be requested by the instructions thereto and customary tax forms that Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably require request) in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion case of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder book-entry transfer of record shares of Company Stock entitled Common Stock, and, in each case, delivery to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 of such other documents as may reasonably require in connection therewith)be requested by the Exchange Agent. Until so surrendered or transferred, issue to the holder of each such Certificate (or any Company Stock not represented by a Certificate) shall represent after the portion of Effective Time for all purposes only the Total Consideration with respect right to receive such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceledMerger Consideration. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or shall accrue accrued on the cash payable upon the surrender or transfer of such Certificate.
(c) If any portion of the Total Merger Consideration payable is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer Tax 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) All Merger Consideration paid upon the 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 Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Effective Time represented shares of Company Common Stock (other than for the shares to be canceled pursuant to Section 3.01(d) formerly represented by such Certificate and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only there shall be no further registration of transfers of shares of Company Common Stock on the right to receive the portion stock transfer books of the Total ConsiderationSurviving Corporation. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(be) No dividends or other distributions declared or made after Any portion of the Effective Time with respect to Payment Fund that remains unclaimed by the Acquiror holders of shares of Company Common Stock with a record date 12 months after the Effective Time shall be paid delivered to the Surviving Corporation, upon demand, and any such holder who has not exchanged shares 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 Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to Parent and 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 Surviving Corporation for payment of the certificates representing shares of Acquiror Common Stock issued in exchange thereforMerger Consideration, 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) . Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to holders at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Acquiror Parent or its designee, free and clear of any all 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior At the Effective Time, all Shares, Options and Warrants outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shalland, at its sole cost and expensesubject to Section 2.10, appoint an exchange agent reasonably acceptable to the Company each holder of a certificate formerly representing any Shares (the each, a “Exchange AgentCertificate”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of an Option or Warrant shall cease to have any rights as a stockholder of the Company Stock entitled to receive or a holder of Options or Warrants.
(b) In exchange for the applicable portion of the Total Merger Consideration pursuant to Section 3.012.08(c), each holder of Series A Preferred Stock shall deliver a letter of transmittal in substantially the form attached hereto as Exhibit D B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates. Parent shall, no later than the certificates evidencing such Company Stock, in physical later of (i) the Closing Date or electronic form, as the case may be (the “Certificates”), to the extent any such Company Stock is represented by ii) three (3) Business Days after receipt of a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Parent may reasonably require in connection therewith) at least three (3) Business Days prior , pay to the Closing Date, the portion holder of the Total Consideration such Certificate a cash amount as provided in Section 2.08(c) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-deliverycancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration cash 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 represented shares of Company Series A Preferred Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationMerger Consideration as provided in Section 2.08(b). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentParent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)2.12. Notwithstanding the foregoing, Parent shall make payments of the Merger Consideration to each holder of Series A Preferred Stock by wire transfer at the Closing to the extent that such holder of Series A Preferred Stock complies with the delivery requirements in this Section 2.12(c) at least one (1) Business Day prior to the date hereof and shall ensure that such payments are made at the Closing.
(bc) No dividends In exchange for the applicable portion of the Series A Liquidation Preference Amount pursuant to Section 2.10 each Warrant Holder shall deliver a warrant termination agreement substantially in the form attached as Exhibit C (a “Warrant Termination Agreement”) and instructions for completing, executing and returning such Warrant Termination Agreement. Parent shall, no later than the later of (i) the Closing Date or (ii) three (3) Business Days after receipt of an Warrant Termination Agreement duly completed and validly executed in accordance with the instructions thereto and any other distributions declared or made after customary documents that the Effective Time Parent may reasonably require in connection therewith, pay to such Warrant Holder a cash amount as provided in Section 2.10 with respect to the Acquiror Common Stock Warrant in respect of which the Warrant Termination Agreement was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon delivery of any Warrant Cancellation Agreement. Notwithstanding the foregoing, Parent shall make payments of the Series A Liquidation Preference Amount to each Warrant Holder by wire transfer at the Closing to the extent that such Warrant Holder complies with the delivery requirements in this Section 2.12(d) at least one (1) Business Day prior to the date hereof and shall ensure that such payments are made at the Closing.
(d) Subject to this Section 2.12, each Indemnifying Holder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate and Warrants from the Escrow Funds as provided in this Agreement and the Escrow Agreement, the Stockholder Representative Expense Fund as provided in this 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 Company Equityholders on the Merger Consideration.
(e) If any portion of the Merger Consideration is to be paid to a record date Person other than the Person in whose name the surrendered Certificate and Warrant is registered, it shall be a condition to such payment that (i) 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 any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of the Parent that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration payable pursuant to this Section 2.12 that remains unclaimed by the Company Equityholders twelve (12) months after the Effective Time shall be returned to the Parent, upon written demand, and any such Company Equityholder who has not exchanged Certificates or Warrant Termination Agreements for the Merger Consideration in accordance with this Section 2.12 prior to that time shall thereafter look only to Parent for payment of the Merger 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 terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Company Equityholder 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 the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three Equityholders two (32) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror the Parent 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Acquirer shall appoint an exchange agent reasonably acceptable to the Company (the “"Exchange Agent”") for the purpose of exchanging certificates representing Company Shares (the "Certificates") for the Merger Consideration. Acquirer will make available to act the Exchange Agent, as needed, the exchange agent Merger Consideration to be paid in the First Merger; provided, however, that Acquiror shall afford respect of the Company Shares. Promptly after the opportunity to review any proposed Contract with the Exchange Agent prior to executionEffective Time, and shall accept the Company’s reasonable comments thereto. Prior to the Closing DateAcquirer will send, Acquiror shall or will cause the Exchange Agent to mail send, to each holder of record at the Effective Time of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Shares a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates to the Exchange Agent) in such form attached hereto as Exhibit D (a “Letter of Transmittal”) the Company and instructions Acquirer may reasonably agree, for use in effecting the surrender delivery of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be (the “Certificates”), Shares to the extent any such Exchange Agent.
(b) Each holder of Company Stock is represented by Shares that have been converted into a Certificate, in exchange for the right to receive the applicable portion of Total Consideration payable Merger Consideration, upon surrender to such holder. The the Exchange Agent shall (A) on the Closing Dateof a Certificate, issue to each holder together with a properly completed letter of record of Company Stock transmittal, will be entitled to receive a portion the Merger Consideration in respect of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is Shares represented by a such Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding such Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive the such Merger Consideration.
(c) If any portion of the Total ConsiderationMerger Consideration is to be paid to a Person other than the Person in whose name the Certificate is registered, it shall be a condition to such payment that the Certificate 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 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 the Effective Time, there shall be no further registration of transfers of Company Shares. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the consideration provided for, and in accordance with the procedures set forth, in this Article I.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.04(a)1.3(a) that remains unclaimed by the holders of Company Shares one year after the Effective Time shall be returned to Acquirer, upon demand, and any such holder who has not exchanged such holder's Company Shares for the Merger Consideration in accordance with this Section 1.3 prior to that time shall thereafter look only to Acquirer for payment of the Merger Consideration in respect of such holder's Company Shares. Notwithstanding the foregoing, Acquirer shall not be liable to any holder of Company Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws.
(bf) No dividends or other distributions declared or made after the Effective Time with respect to Acquirer Common Stock issued in the Acquiror Merger shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 1.3. Subject to the effect of applicable laws, following such surrender, there shall be paid, without interest, to the record holder of the Acquirer Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such Acquirer Common Stock with a record date after the Effective Time shall be paid and a payment date on or prior 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 date of such Certificate (or Company Stock surrender and 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 previously 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, and (ii) at the appropriate payment date, the amount of dividends or other distributions, distributions payable with respect to such Acquirer Common Stock with a record date after the Effective Time but prior to surrender and with a payment date occurring after surrender, payable with respect subsequent to such whole shares surrender. For purposes of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (dividends or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid other distributions in respect of Acquirer Common Stock, all Acquirer Common Stock to be issued pursuant to the Company Stock formerly represented by such Certificate in accordance with this Agreement.
Merger (e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration but not options therefor issued pursuant to Section 3.03, with 1.4 unless actually exercised at the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to Effective Time) shall be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff LetterEffective Time.
Appears in 1 contract
Samples: Merger Agreement (S3 Inc)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging certificates representing Company Shares (a “Certificate”) for the consideration set forth in Section 2.1 (i) through Section 2.1(d)(iv). The shares of Parent Common and cash to act be received as consideration pursuant to Section 2.1(d) (i) through Section 2.1(d)(v), together with cash in lieu of fractional shares as specified in Section 2.8, is referred to herein as the exchange agent “Closing Merger Consideration.” Parent shall make available to the Exchange Agent, as needed, the Closing Merger Consideration to be paid in respect of Company Shares (disregarding for such purpose any Company Shares that may potentially be dissenting shares pursuant to Section 2.6, but less the portions of the Closing Merger Consideration that are Escrow Cash and Escrow Shares to be deposited in the First Merger; provided, however, that Acquiror shall afford Escrow Fund (as defined in Section 9.2(a)) and less the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to portions of the Closing DateMerger Consideration that are to be deposited in the Earn Out Escrow), Acquiror together with any dividends, interest or other distributions payable pursuant to Section 2.5(g). Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to mail send, to each holder of record of Company Stock entitled to receive a portion of Shares at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting such exchange (which shall specify that the surrender delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates evidencing such Company StockCertificates to the Exchange Agent, in physical or electronic formshall explain that the Securityholders are bound by the indemnification provisions of ARTICLE IX, as the case shall explain how all requirements under Section 2.5(c) below may be met, and how withholding may be avoided, or if not avoided, will be calculated under Section 2.9 below).
(b) Holders of Company Shares (such holders, together with the holders of Company Options and Company Warrants, the “CertificatesSecurityholders”), to the extent any such Company Stock is represented by a Certificate, in exchange for the right ) whose rights have been converted into rights to receive the applicable portion of Total Consideration payable Closing Merger Consideration, upon surrender to such holder. The the Exchange Agent shall (A) on the Closing Dateof a Certificate or Certificates representing Company Shares, issue to each holder together with a properly completed letter of record of transmittal covering such Company Stock Shares, will be entitled to receive a portion (i) the Closing Merger Consideration payable in respect of such Company Shares (less the portions of the Total Closing Merger Consideration pursuant that are Escrow Cash and Escrow Shares to Section 3.01 that has delivered a Certificate (only to be deposited in the extent such Company Stock is represented by a Certificate) (together with a Letter Escrow Fund and less the portions of 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 (3) Business Days prior to the Closing DateMerger Consideration that are to be deposited in the Earn Out Escrow), the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (Bii) following the Effective Time, with respect any dividends or other distributions to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to holders are entitled under Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate2.5(g). Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior has been converted into the right to receive the Effective Time represented shares of Company Stock (other than for the shares to be canceled Closing Merger Consideration pursuant to Section 3.01(d2.1(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive such Closing Merger Consideration and the right to receive any dividends or other distributions payable pursuant to Section 2.5(g).
(c) If any portion of the Total ConsiderationClosing Merger Consideration is to be paid to a Person other than the registered holder of Company Shares represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and accompanied by all documents required to evidence and effect the transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Company Shares or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of Company Shares. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled cancelled and exchanged as for the consideration provided for and in accordance with the procedures set forth in this Section 3.04(a)ARTICLE II.
(be) No dividends or other distributions declared or Any portion of the Closing Merger Consideration made after the Effective Time with respect available to the Acquiror Common Stock with a record date Exchange Agent pursuant to Section 2.5(a) that remains unclaimed by the holders of Company Shares sixty (60) days after the Effective Time shall be automatically returned to Parent, and any holder who has not exchanged such holder’s Company Shares for the Closing Merger Consideration in accordance with this Section 2.5 prior to that time shall thereafter look only to Parent for payment of the Closing Merger Consideration in respect of such holder’s Company Shares. Notwithstanding the foregoing, neither Parent, the Company nor the Surviving Corporation shall be liable to any holder of Company Shares for any amount paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of Company Holders three Shares twelve (312) years months after the Effective Time (or such earlier date, immediately date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authoritygovernmental entity) shall becomeshall, to the extent permitted by applicable Lawlaw, become the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(df) If any Certificate shall Any portion of the Closing Merger Consideration made available to the Exchange Agent pursuant to Section 2.5(a) to pay for Company Shares for which appraisal rights have been lostperfected shall be returned to Parent upon demand to the extent Parent is required to deposit shares of Parent Common with the Escrow Agent pursuant to Section 2.6.
(g) No dividends, stolen interest or destroyedother distributions with respect to Parent Common constituting part of the Closing Merger Consideration shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 2.5 and all such dividends, upon the making of an affidavit of loss interest and indemnity by the Person claiming such Certificate to other distributions shall be lost, stolen or destroyed and, if required by the Company or deposited with the Exchange Agent. Upon such surrender, there shall be paid, without interest, to the posting by Person in whose name the Certificates representing shares of Parent Common into which such Person of a bondCompany Shares were converted are registered, in such reasonable amount as the Company may directall dividends, 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 Closing Consideration or Non-Accredited Holder Cash Consideration to be paid interest and other distributions payable in respect of the Company Stock formerly represented by such Certificate shares of Parent Common on a date subsequent to, and in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu respect of a Certificate (in a form to be mutually agreed by record date after, the Acquiror and the Company)Effective Time.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shallECI shall appoint, at its sole cost with the reasonable approval of the Company, a bank or trust company as paying agent (the "Paying Agent") for the purpose of exchanging certificates representing shares of Company Capital Stock outstanding as of the Effective Time for the Net Aggregate Merger Consideration and expense, appoint an exchange agent reasonably acceptable such other functions as are described in this Agreement. Immediately prior to the Company (Effective Time, ECI will deposit the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract Net Aggregate Merger Consideration with the Exchange Agent prior Paying Agent, for the benefit of the holders of shares of Company Capital Stock, for exchange in accordance with the provisions of this Agreement.
(b) Each holder of shares of Company Capital Stock that have been converted into a right to executionreceive Net Merger Consideration Per Share, and shall accept the Company’s reasonable comments thereto. Prior upon surrender to the Closing Date, Acquiror shall cause the Exchange Paying Agent to mail to each holder of record a certificate or certificates representing such shares of Company Capital Stock entitled to receive or as contemplated by Section 2.08(d), together with a portion of the Total Consideration pursuant to Section 3.01, a properly completed letter of transmittal transmittal, in the form attached hereto as Exhibit D (a “Letter E, covering such shares of Transmittal”) and instructions for use Company Capital Stock, will be entitled to receive the Net Merger Consideration Per Share payable in effecting the surrender respect of such shares less such holder's Pro Rata Interest of the certificates evidencing such Company StockEscrow Amount, in physical or electronic form, as the case may which shall be (the “Certificates”), delivered to the extent any Escrow Agent and placed in the Escrow Indemnity Account and the IP Indemnity Account described in Section 2.07 above, and such holder's Pro Rata Interest of the Working Capital Holdback Amount, if applicable, which shall be retained or paid to the Company Stock Stockholders as set forth in Section 2.06(c). Any Company Stockholder that surrenders its stock certificates, together with a properly completed letter of transmittal, on or prior to the date that is three business days prior to the anticipated Closing Date, shall have the portion of the Net Merger Consideration Per Share payable in respect of the shares represented by a Certificatesuch certificates paid to it by wire transfer of immediately available funds or check on the Closing Date. After the Effective Time, in exchange each such certificate shall, until so surrendered, represent for all purposes only the right to receive the applicable portion of Total such Net Merger Consideration payable to such holder. The Exchange Agent shall Per Share.
(Ac) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following After the Effective Time, with respect to any holder there shall be no further registration of record transfers of shares of Company Capital Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant outstanding prior to the preceding clause (A)Effective Time. If, no later than three (3) Business Days after receipt the Effective Time, certificates representing shares of a Certificate (only to the extent such Company Capital 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is are presented to the Exchange AgentSurviving Corporation, it they shall be canceled cancelled and exchanged as provided for the applicable Net Merger Consideration Per Share, and in accordance with the procedures set forth in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretoAgreement.
(d) [Reserved.]
(e) If any Certificate of the Company Capital Stock certificates shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Paying Agent shall issue, deliver in exchange for such lost, stolen or destroyed Certificatecertificates, upon the making of an affidavit of that fact by the holder thereof in the form set forth as Exhibit F, the Closing applicable Net Merger Consideration Per Share; provided, however, that the Paying Agent or Non-Accredited Holder Cash Consideration ECI may, in its discretion and as a condition precedent to the issuance and delivery thereof, require the owner of such lost, stolen or destroyed certificates to deliver a reasonable and customary indemnity or bond as it may reasonably direct against any claim that may be paid in respect of made against the Paying Agent, ECI or the Company Stock formerly represented by with respect to such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall applycertificates alleged to have been lost, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)stolen or destroyed.
(f) The provisions All amounts of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion cash paid upon the surrender of certificates representing shares of Company Capital Stock in accordance with the Total Consideration terms hereof (including any cash or other distributions paid pursuant to Section 3.032.06(c)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of Company Capital Stock.
(g) To the extent permitted by applicable Law, none of ECI, Merger Sub, the Company or the Surviving Corporation shall be liable to any holder of shares of Company Capital Stock for any Net Merger Consideration Per Share (or dividends or distributions with the Noteholders being respect thereto) required to deliver their be delivered to a public official pursuant to any applicable Payoff Letterabandoned property, escheat or similar law.
(h) Each of ECI, the Paying Agent and the Surviving Corporation shall be entitled to deduct and withhold from the Net Merger Consideration Per Share otherwise payable pursuant to this Agreement to any holder of Company Capital Stock such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local, provincial or foreign tax law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Company Capital Stock in respect of which such deduction and withholding was made.
Appears in 1 contract
Samples: Merger Agreement (Eci Telecom LTD/)
Surrender and Payment. (a) Prior At the Effective Time, all shares of Capital Stock shall automatically be cancelled and retired and shall cease to the Closing Dateexist, Acquiror shalland, at its sole cost and expensesubject to Section 2.10, appoint an exchange agent reasonably acceptable to the Company each holder of a certificate formerly representing any shares of Capital Stock (the each, a “Exchange AgentCertificate”) shall cease to act have any rights as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the a holder of Capital Stock.
(b) The Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail has provided to each holder of record of Company Priority Preferred Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in substantially the form attached hereto as Exhibit D G (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable that portion of Total the Merger Consideration payable to in respect of such holder. The Exchange Agent shall ’s Priority Preferred Stock pursuant to Section 2.08(b).
(Ac) on On the Closing Date, issue Parent shall pay or cause to be paid to each holder of record of Company Priority Preferred Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that who has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with Parent a Letter of Transmittal Transmittal, duly executed and completed and validly executed in accordance with its requirements, by wire transfer of immediately available funds, an amount representing the instructions thereto Closing Per Share Merger Consideration associated with the Capital Stock held by such holder as set forth on the Consideration Spreadsheet and customary tax forms that the Exchange Agent may reasonably require as contemplated by Section 2.03(c)(iii). If any holder of Priority Preferred Stock has not delivered to Parent a Letter of Transmittal, duly executed and completed in connection therewith) at least three (3) Business Days accordance with its requirements prior to the Closing, Parent shall pay or cause or be paid to the Distribution Agent, by wire transfer of immediately available funds, an aggregate amount representing the Closing DatePer Share Merger Consideration associated with the Capital Stock held by all such holders, the portion of the Total Consideration with respect for further distribution to such Certificate (or any Company Stock not represented holders upon receipt by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder Distribution Agent of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock is represented by a Certificate) (together with a Letter Letters of Transmittal duly executed and 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 the holder of such Certificate its requirements.
(or any Company Stock not represented by a Certificated) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on If any portion of the Total Merger Consideration payable upon surrender of any Certificate (or any Company Stock not represented by is to be paid to a Certificate). Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (Person other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after Person in whose name the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any surrendered Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agentregistered, it shall be canceled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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 condition 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, payment that (i) the amount of dividends such Certificate shall be properly endorsed or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Acquiror Common Stockshall otherwise be in proper form for transfer, and (ii) at the appropriate Person requesting such payment date, the amount of dividends shall pay to Parent any transfer or other distributions, with Tax required as a record date after result of such payment to a Person other than the Effective Time but prior registered holder of such Certificate or establish to surrender and a payment date occurring after surrender, payable with respect to the reasonable satisfaction of Parent that such whole shares of Acquiror Common StockTax has been paid or is not payable.
(ce) Neither Parent nor the Distribution Agent shall be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) Priority Preferred Stockholders two years after the Effective Time date on which such Priority Preferred Stockholder was entitled receive such amount (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Parent 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Merit Medical Systems Inc)
Surrender and Payment. (a) Prior to the Closing Date, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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 Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive Parent shall appoint a portion of bank or trust company (the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant to the preceding clause (A), no later than three (3"Exchange Agent") Business Days after receipt of a Certificate (only to the extent such Company 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting purpose of exchanging certificates representing Shares and subject to Section 3.09) shall be deemed from and after for the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Merger Consideration. If after the Effective TimeParent will, any Certificate (or any Company Stock not represented by a Certificate) is presented will cause Merger Subsidiary to, make available to the Exchange Agent, it shall be canceled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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, and (ii) at the appropriate payment dateneeded, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Merger Consideration to be paid in respect of the Company Stock formerly represented by Shares (the "Exchange Fund"). For purposes of determining the Merger Consideration to be made available, Parent shall assume that no holder of Shares will perfect his right to demand cash payment of the fair market value of his Shares pursuant to Chapter 15 of the PBCL. Promptly after the Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of Shares at the Effective Time a letter of transmittal for use in such Certificate exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Shares to the Exchange Agent). The Exchange Agent shall, pursuant to irrevocable instructions, make the payments provided in accordance with this Section 2.2. The Exchange Fund shall not be used for any other purpose, except as provided in this Agreement.
(eb) The provisions Each holder of this Section 3.04 shall applyShares that have been converted into a right to receive the Merger Consideration, mutatis mutandisupon surrender to the Exchange Agent of a certificate or certificates representing such Shares, to Company Optionholders together with a properly completed letter of transmittal covering such Shares and other customary documentation, will be entitled to receive the Merger Consideration payable in respect of such Shares. As of the Effective Time, all such Shares shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate previously representing any such Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration, without interest, upon surrender of the certificates representing such Shares, as contemplated hereby.
(c) If any portion of the Total Merger Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form is to be mutually agreed paid to a person other than the registered holder of the Shares represented by the Acquiror certificate or certificates surrendered in exchange therefor, it shall be a condition to such payment that the certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Company).
(f) The provisions person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a person other than the registered holder of such Shares or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. For purposes of this Section 3.04 shall applyAgreement, mutatis mutandis"person" means an individual, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03corporation, with the Noteholders being required to deliver their applicable Payoff Lettera partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
Appears in 1 contract
Samples: Merger Agreement (Carescience Inc)
Surrender and Payment. (a) Prior Not less than five (5) Business Days prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Paying Agent”) to act as the agent and enter into an exchange agent agreement with such Paying Agent for the purpose of exchanging the Merger Consideration for certificates formerly representing Shares (each, a “Certificate”). Prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, by wire transfer of immediately available funds, cash in an amount sufficient to pay (i) the First Mergeraggregate Merger Consideration as required to be paid pursuant to Section 2.01; provided, that the Paying Agent shall distribute the funds received by it pursuant to clauses (ii) and (iii) of this Section 2.02(a) to the Surviving Corporation to be paid by the Surviving Corporation in accordance with Section 2.07(a) and Section 2.07(b), (ii) the aggregate Company Stock Option Consideration due to holders of Company Stock Options as required to be paid pursuant to Section 2.07(a), and (iii) the aggregate Company Stock Award Consideration due to holders of Company Stock Awards as required to be paid pursuant to Section 2.07(b) (collectively, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than the payment of the Merger Consideration and shall not be subject to any claim of Parent under this Agreement. If the Payment Fund is inadequate to pay the aggregate amounts to which holders of Shares shall be entitled under Section 2.01(b), the holders of Company Stock Options shall be entitled under Section 2.07(a), and the holders of Company Stock Awards shall be entitled under Section 2.07(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Paying Agent sufficient to make all of the foregoing payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof, and, for the avoidance of doubt, any losses resulting from investment of the Payment Fund shall not in any way diminish Parent’s and Merger Sub’s obligations to pay in full all amounts due under this Agreement. The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that: (i) no such investment or losses thereon shall affect the Merger Consideration payable to the holders of Company Common Stock; and (ii) 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 Acquiror are then publicly available). Any net profit resulting from, or interest or income produced by, such investments shall afford be payable to the Company the opportunity to review any proposed Contract with the Exchange Agent prior to executionSurviving Corporation or Parent, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion any amounts in excess of the Total Consideration aggregate amounts payable pursuant to Section 3.012.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”2.07(a) and instructions for use 2.07(b) shall be promptly returned to the Surviving Corporation or Parent, in effecting the surrender each case as directed by Parent. Parent shall pay, or cause to be paid, all charges and expenses, including those of the certificates evidencing such Company StockPaying Agent, in physical or electronic form, as connection with the case may be (the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange of Shares for the right to receive the applicable portion of Total Consideration payable to such holderMerger Consideration. The Exchange Agent shall As promptly as practicable (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed but in accordance with the instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant to the preceding clause (A), no event later than three (3) Business Days after receipt the Effective Time), Parent shall send, or shall cause the Paying Agent to send, to each record holder of Shares at the Effective Time, a Certificate letter of transmittal and instructions (only which letter of transmittal and instructions shall be in the form and substance reasonably acceptable to Parent and the extent Company) for use in such exchange.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration pursuant to Section 2.01(b) shall be entitled to receive the Merger Consideration in respect of the Company Common Stock is represented by a Certificate upon surrender to the Paying Agent of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto letter of transmittal and any customary tax forms that the Exchange Agent such other documents as may reasonably require in connection therewith)be requested by the Paying Agent. Until so surrendered, issue and subject to the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as terms set forth in Section 2.03, each such Certificate shall, after the SpreadsheetEffective Time, electronically through book entry-deliveryrepresent for all purposes only the right to receive the Merger Consideration payable in respect thereof. Unless otherwise provided herein, no No interest shall be paid or accrued on the cash payable upon the surrender of any Certificate. Upon payment of the Merger Consideration pursuant to the provisions of this Article II, each Certificate or Certificates so surrendered shall accrue on immediately be cancelled, retired and will cease to exist.
(c) If any portion of the Total Merger Consideration payable is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment shall pay to the Paying Agent any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of the Paying Agent that such Tax has been paid or is not payable.
(d) All Merger Consideration paid upon the 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 Certificates in accordance with the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificate, and from and after the Effective Time, for all purposes, to evidence only there shall be no further registration of transfers of Shares on the right to receive the portion stock transfer books of the Total ConsiderationSurviving Corporation. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled cancelled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a).
(b) Article II. No dividends or other distributions declared or made after the Effective Time with respect to capital stock of the Acquiror Common Stock Surviving Corporation with a record date on or 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common StockCertificates.
(ce) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining portion of the Payment Fund that remains unclaimed by the Company Holders three holders of Shares two (32) years after the Effective Time (shall be returned to the Surviving Corporation or Parent, upon demand as directed by Parent, and any such earlier date, immediately holder who has not exchanged Shares for the Merger Consideration in accordance with this Section 2.02 prior to such that time when shall thereafter look only to Parent, as a general creditor thereof, for payment of the Merger Consideration. Notwithstanding the foregoing, none of Parent, Surviving Corporation or Company shall be liable to any holder of Shares for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. If any Certificate shall not have been surrendered prior to the date on which the related Merger Consideration would otherwise escheat to or become the property of any Governmental Authority) shall becomeEntity, any such Merger Consideration shall, to the extent permitted by applicable Law, immediately prior to such time become the property of Acquiror Parent, free and clear of any all claims or interest of any Person person previously entitled thereto.
(df) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by Merger Consideration made available to the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Paying Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Parent, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Research Pharmaceutical Services, Inc.)
Surrender and Payment. (a) Prior At the Merger I Effective Time, all Company Shares (including all Company Shares issued upon conversion of the Convertible Notes) and all Company Options outstanding immediately prior to the Closing Date, Acquiror shall, at its sole cost Merger I Effective Time shall automatically be cancelled and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, retired and shall accept the Company’s reasonable comments thereto. Prior cease to the Closing Dateexist, Acquiror shall cause the Exchange Agent and, subject to mail to Section 2.02, each holder of record a Certificate shall cease to have any rights as a stockholder of the Company and each holder of a Company Option shall cease to have any rights as a holder of Company Stock entitled Options.
(b) Not later than reasonably promptly after the Merger I Effective Time, Parent shall send to receive a portion (i) each record holder of Company Shares at the Total Consideration Merger I Effective Time whose Company Shares were converted pursuant to Section 3.012.01(a)(ii) into the right to receive the Per Share Merger Consideration for each such Company Share of such holder, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) ), an IRS Form W-9, and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.01(a)(ii) and (ii) each record holder of a Vested Company Option at the Merger I Effective Time whose Vested Company Option was converted pursuant to Section 2.04 into the right to receive the Per Share Merger Consideration for each Net Share covered by such Vested Company Option in accordance with Section 2.04, an option termination agreement (an “Option Termination Agreement”), an IRS Form W-9, and instructions for completing, executing and returning such Option Termination Agreement in exchange for the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 2.04. The Letter of Transmittal and the Option Termination Agreement shall be in customary form and have such provisions as Parent may reasonably require.
(c) Each holder of each Company Share at the Merger I Effective Time that has delivered been converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.01(a)(ii) and each holder of a Certificate (only Vested Company Option at the Merger I Effective Time whose Vested Company Option was converted pursuant to Section 2.04 shall be entitled to receive, on the applicable Payment Dates and subject to the extent applicable conditions and contingencies set forth herein, (i) (x) in the case of each such holder of a Company Share, the Per Share Merger Consideration into which each such Company Stock is Share has been converted pursuant to Section 2.01(a)(ii) in respect of each such Company Share represented by a CertificateCertificate or Certificates, and (y) in the case of each such holder of a Vested Company Option, the Per Share Merger Consideration into which each such Vested Company Option has been converted pursuant to Section 2.04 in respect of each Net Share covered by such Vested Company Option in accordance with Section 2.04, (together with ii) any cash in lieu of fractional shares that the holder has the right to receive pursuant to Section 2.01(c), and (iii) any cash dividends or other distributions that the holder has the right to receive pursuant to Section 2.09, upon surrender and/or delivery to Parent of (A) a Certificate or Certificates representing such Company Shares, (B) a Letter of Transmittal with respect to such Company Shares or an Option Termination Agreement with respect to such Vested Company Options, (C) an IRS Form W-9, and (D) such other documents as reasonably requested by Parent, in each case 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred SharesOption Termination Agreement, as applicable, have been converted pursuant to referenced in Section 3.01(a2.03(b) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as items set forth in the Spreadsheet, electronically immediately preceding clauses (A) through book entry-delivery(D) are referred to herein collectively as the “Exchange Deliverables”). Unless otherwise provided herein, no No interest shall be paid or accrued upon the surrender of any Certificate or delivery of any Letter of Transmittal or Option Termination Agreement. Upon payment of the Closing Merger Consideration pursuant to the provisions of this ARTICLE II, each Certificate so surrendered shall accrue on immediately be cancelled.
(d) If any portion of the Total 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 is to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the Acquiror Common Stock with a record date after the Effective Time shall be paid to a Person other than the holder of any unsurrendered Person in whose name the surrendered Certificate (or Company Stock not represented by is registered, it will be a Certificate) with respect to the Acquiror Common Stock issuable condition to such holder hereunder payment that (i) such Certificate is properly endorsed or otherwise is in consideration proper form for transfer and (ii) the surrender Person requesting such payment shall pay to Parent any transfer or other Tax required as a result of such Certificate (or Company Stock not represented by payment to a Certificate) until Person other than the registered 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 establish to the effect reasonable satisfaction of escheat, tax Parent that such Tax has been paid or other applicable Laws, following surrender of any such Certificate (or Company Stock is not represented by a Certificate), there shall required to 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stockpaid.
(ce) None of Parent, Merger Sub I, Merger Sub II, the Company, the Intermediate Surviving Entity, or the Surviving Entity will be liable to any holder of Certificates or other Persons who were Company Securityholders as of the Merger I Effective Time for any amounts paid to a public official pursuant to applicable abandoned property, escheat, or similar Laws. Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by any Person who was a Company Stockholder or Vested Company Optionholder at the Company Holders three (3) years after the Merger I Effective Time by the Second Anniversary (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) by such Person’s failing to surrender and/or deliver to Parent the Exchange Deliverables in accordance with Section 2.03(c) prior to that time shall become, to the extent permitted by applicable Law, the property of Acquiror Parent 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company will appoint Acquiom Financial LLC, or another reputable paying agent to whom Buyer does not have a reasonable objection (the “Exchange Paying Agent” and such agreement, in substantially the form of Exhibit C attached hereto, in respect thereof entered into between the Company, Buyer, Sellers’ Representative and the Paying Agent, the “Paying Agent Agreement”) for the purpose of exchanging Certificates for the applicable consideration payable pursuant to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, this Article 2 and shall accept the Company’s reasonable comments thereto. Prior making payments to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock Sellers.
(b) Each Stockholder will be entitled to receive receive, after surrender to the Paying Agent of his, her or its Certificates, in each case, together with a portion of the Total Consideration pursuant to Section 3.01, a properly completed letter of transmittal transmittal, substantially in the form of Exhibit D attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be (the “CertificatesTransmittal Documents”), to the extent any for each such Company Stock is Share represented by a such Certificate, in exchange for : (i) the right to receive Per Share Closing Consideration upon the applicable portion of Total Closing and (ii) any Per Share/Option Additional Consideration payable to such holder. The Exchange Agent shall (A) on in the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of manner and at the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as times set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)this Agreement. Until so surrendered, each outstanding such Certificate (or any Company Stock not represented by a Certificate) that prior to will represent after the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence purposes only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled and exchanged payment as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the Acquiror Common Stock with a record date after the Effective Time Agreement. Each Optionholder shall be paid entitled to receive from 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, Paying Agent (i) the amount of dividends or other distributions with a record date after Per Option Closing Consideration upon the Effective Time and theretofore paid with respect to such shares of Acquiror Common Stock, Closing and (ii) any Per Share/Option Additional Consideration payable in the manner and 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stocktimes set forth in this Agreement.
(c) Any No later than five Business Days prior to the date on which the Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by is scheduled to occur, the Company Holders three will send to each Stockholder Transmittal Documents for use in connection with the Contemplated Transactions. Subject to Section 2.04(b), Section 2.06 and this Section 2.07(c), the Company will direct (3and the Surviving Corporation will cause) years after the Paying Agent to pay, immediately following the Effective Time (or such earlier date, immediately prior to such time when as soon thereafter on the amounts would otherwise escheat to or become property of any Governmental Authority) shall becomeClosing Date as is practicable), to each Stockholder by wire transfer of immediately available funds the extent permitted aggregate Per Share Closing Consideration such Stockholder is entitled to receive pursuant to Section 2.07(b) (less any applicable withholding Taxes) if such Stockholder has delivered to the Paying Agent properly executed Transmittal Documents, wire transfer instructions and certificates (or affidavits in accordance with Section 2.11) evidencing such Shares of such Stockholders, together with such other documents as may reasonably be required by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretoPaying Agent.
(d) If any Certificate shall have been lostAfter the Effective Time, stolen or destroyed, upon there will be no further registration of transfers of Shares. All Certificates presented to the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Paying Agent, the posting as contemplated by this Section 2.07, will be canceled upon 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementpresentment.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a Any portion of the Total Aggregate Closing Merger Consideration made available to the Paying Agent pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed 2.07(a) that remains unclaimed by the Acquiror and Sellers one year after the Effective Time will be returned to the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a and any Stockholder who has not exchanged its Shares for the applicable portion of the Total Aggregate Closing Merger Consideration pursuant prior to Section 3.03such time and any other Seller who has not otherwise received such Seller’s portion of the Aggregate Closing Merger Consideration, with will thereafter look only to the Noteholders being required Company for payment thereof without any interest thereon. Any Per Share/Option Additional Consideration made available to deliver their applicable Payoff Letterthe Paying Agent that remains unclaimed by the Sellers one year after the date of such deposit will be returned to the Company, and any Stockholder who has not exchanged its Shares or any other Seller who has otherwise not received such Seller’s aggregate Per Share/Option Additional Consideration prior to such time will thereafter look only to the Company for payment thereof without any interest thereon.
Appears in 1 contract
Samples: Merger Agreement (Greif Inc)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent (the "Paying Agent") reasonably acceptable satisfactory to the Company, for the purpose of exchanging certificates representing shares of Company Stock (the “Exchange Agent”"Certificates") to act for the Merger Consideration as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract contemplated by Section 2.02(a). Concurrently with the Exchange Agent prior Effective Time, Parent will deposit, or cause to executionbe deposited, with the Paying Agent, as needed, cash sufficient to pay the Per Share Merger Consideration in respect of the shares of Company Stock. Promptly after the Effective Time (and shall accept the Company’s reasonable comments thereto. Prior to the Closing Datein any event within five Business Days), Acquiror shall Parent will cause the Exchange Paying Agent to mail mail, to each holder of record of shares of Company Stock entitled to receive at the Effective Time a portion notice advising such holder of the Total Consideration pursuant to Section 3.01, effectiveness of the Merger and a letter of transmittal in the form attached hereto as Exhibit D (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 Certificates to the Paying Agent) for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as the case may be exchange.
(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 Total Consideration payable to such holder. The Exchange Agent shall (Ab) on the Closing Date, issue to each Each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d2.02(b) and shares of Dissenting Shares Company Stock) will be entitled to receive, upon surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, an amount equal to the product of the Per Share Merger Consideration and the number of shares of Company Stock represented by such Certificate, rounded down to the nearest whole cent (such amount, the "Per Certificate Merger Consideration ") subject to Section 3.09) any Taxes required to be withheld. Until so surrendered, each such Certificate shall represent from and after the Effective Time for all purposes only the right to receive the Per Certificate Merger Consideration. No interest shall be deemed from paid or will accrue on the Merger Consideration payable pursuant to the provisions of this Article II.
(c) If any portion of the Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate is registered, it shall be a condition to such payment that, the Certificate 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 Paying Agent any transfer or other 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 Paying Agent that such Tax has been paid or is not payable.
(d) From and after the Effective Time, for all purposes, to evidence only the right to receive the portion stock transfer books of the Total ConsiderationCompany shall be closed and there shall be no further registration of transfers of shares of Company Stock. If If, at or after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as provided for the Per Certificate Merger Consideration in accordance with the procedures set forth in this Section 3.04(a)Article II.
(be) No dividends or other distributions declared or Any portion of the Per Share Merger Consideration made after the Effective Time with respect available to the Acquiror Common Paying Agent pursuant to Section 2.03(a) that remains unclaimed by the holders of shares of Company Stock with a record date six months after the Effective Time shall be paid returned to the holder of Parent, upon demand, and 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 who has 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 exchanged such shares of Acquiror 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 a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate for the Per Share Merger Consideration in accordance with this Agreement.
(e) The provisions of this Section 3.04 2.03 prior to that time shall apply, mutatis mutandis, thereafter look only to Company Optionholders entitled to a portion Parent for payment of the Total Per Share Merger Consideration in respect of such shares, without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Stock for any amounts paid to a, public official pursuant to Section 3.03applicable abandoned property, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)escheat or similar Laws.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”"Depositary") to act as for the exchange agent in purpose of exchanging certificates representing shares of Company Stock (the First Merger; provided, however, that Acquiror shall afford "Certificates") for the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments theretoMerger Consideration. Prior Parent will make available to the Closing DateDepositary, Acquiror shall in such amounts as may be needed from time to time, the Merger Consideration to be paid pursuant to Section 2.02 in exchange for outstanding shares of Company Stock. Promptly after the Effective Time, Parent will send, or will cause the Exchange Agent Depositary to mail send, to each holder of record shares of Company Stock entitled to receive a portion of at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender such exchange (which shall specify that delivery of the certificates evidencing such Company StockMerger Consideration shall be effected, in physical or electronic form, as the case may be (the “Certificates”), and risk of loss and title to the extent any such Certificates shall pass, only upon proper delivery of the Certificates to the Depositary).
(b) Each holder of shares of Company Stock is represented by that have been converted into a Certificate, in exchange for the right to receive the applicable portion Merger Consideration, upon surrender to the Depositary of Total a Certificate, together with a properly completed letter of transmittal if applicable, will be entitled to receive the Merger Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to for each holder of record share of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a such Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding such Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive the such Merger Consideration, without interest thereon.
(c) If any portion of the Total ConsiderationMerger Consideration is to be paid to a person other than the person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that the Certificate 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 Depositary any transfer or other 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 Depositary that such tax has been paid or is not applicable.
(d) At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of shares of Company Stock. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(be) No dividends or other distributions declared or Any portion of the Merger Consideration made after the Effective Time with respect available to the Acquiror Common Depositary pursuant to Section 2.03(a) that remains unclaimed by the holders of shares of Company Stock with a record date six months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged them for the Merger Consideration in accordance with this Section 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such shares of Company Stock. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Company Stock for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) Parent and Merger Subsidiary shall be entitled to deduct and withhold, or cause its agents to deduct and withhold, from the Offer Price or Merger Consideration payable to a holder of any unsurrendered Certificate (or shares of Company Stock not represented by a Certificate) with respect pursuant to the Acquiror Common Stock issuable to Offer or Merger any withholding taxes as are required under the Internal Revenue Code of 1986 (the "Code") or any applicable provision of state, local or foreign tax law. To the extent that amounts are so withheld by Parent or Merger Subsidiary, 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 withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the certificates representing shares of Acquiror Common Company 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented which such deduction and withholding was made by such Certificate in accordance with this AgreementParent or Merger Subsidiary.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Binc Acquisition Corp)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”) and exchanging the Warrant Consideration for each share of Company Stock subject to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company Warrants. At or prior to the opportunity Effective Time, Parent shall make available to review any proposed Contract the Exchange Agent the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares and the Warrant Consideration to be paid in respect of the Company Warrants (but not, for the avoidance of doubt, the In-the-Money Company Stock Option Merger Consideration or the Company RSU Merger Consideration to be paid in respect of In-the-Money Company Stock Options and Company RSUs, respectively). All cash deposited with the Exchange Agent prior to executionmay not be used for any purpose not provided in this Agreement, or as otherwise agreed by the Company and shall accept Parent before the Company’s reasonable comments theretoEffective Time. Prior Any income from investment of the Exchange Fund will be payable to the Closing DateSurviving Corporation. Promptly after the Effective Time (but in no event later than five Business Days after the Effective Time), Acquiror Parent shall cause the Exchange Agent to mail send, to each holder of record shares of Company Stock entitled to receive a portion at the Effective Time (other than the Company, Parent, Merger Subsidiary, any Subsidiary of the Total Consideration pursuant to Section 3.01Company or Parent, or holders of Dissenting Shares who have not subsequently withdrawn or lost their rights of appraisal) a letter of transmittal transmittal, in form and substance reasonably acceptable to the form attached hereto as Exhibit D (a “Letter of Transmittal”) Surviving Corporation, 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 Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in effecting such exchange.
(b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) 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 Merger Consideration in respect of the certificates evidencing such Company Stock, in physical Stock represented by a Certificate or electronic formUncertificated Share. Until so surrendered or transferred, as the case may be (be, each such Certificate or Uncertificated Share shall represent after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion of Total such Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of Certificates or 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 shall be a condition to such holder. The payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay in advance to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(d) Promptly after the Effective Time, Parent shall (A) on cause the Closing Date, issue Exchange Agent to pay to each holder of record a Company Warrant as of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 immediately prior to the Effective Time represented the Warrant Consideration for each share of Company Common Stock subject to such Company Warrant, payable to such holder pursuant to Section 2.03 in accordance with joint written instructions provided by the Company and the holder of such Company Warrant to the Exchange Agent.
(e) After the Effective Time, there shall be no further registration of transfers of shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and or transfers of Company Warrants. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for all purposesthe Merger Consideration provided for, to evidence only and in accordance with the right to receive the portion of the Total Considerationprocedures set forth, in this Article 2. If If, after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Warrants are presented to the Surviving Corporation or the Exchange Agent, it they shall be canceled and exchanged as for the Warrant Consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(bf) No dividends or other distributions declared or Any portion of the Merger Consideration made after the Effective Time with respect available to the Acquiror Common Exchange Agent pursuant to Section 2.04(a) that remains unclaimed by the holders of shares of Company Stock with a record date one year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this Section 2.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration, in respect of such shares without any interest thereon. Notwithstanding the foregoing, none of Parent, the Surviving Corporation or the Exchange Agent shall be liable to any holder of shares of Company Stock for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders three (3) years after the Effective Time (or such earlier date, Stock immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Acquiror Parent free and clear of any claims or interest of any Person previously entitled thereto.
(dg) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration pursuant to be paid Section 2.05 in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreementany Dissenting Shares shall be returned to Parent, upon demand.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior Promptly following the receipt of shareholder approval pursuant to Section 2.6, the Closing Date, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror Holder Representative shall cause the Exchange Agent Payments Administrator to mail distribute (electronically or otherwise) to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Shareholder a letter of transmittal substantially in the form attached hereto as Exhibit D B (a “Letter of TransmittalTransmittal Document”) and instructions for use to be tendered in effecting the surrender respect of the certificates evidencing shares of Common Stock held by such holder and acknowledging the termination and cancellation of any Company Stock, in physical or electronic form, as the case may be (the “Certificates”), to the extent any Options held by such Company Stock is represented by a Certificateholder, in exchange for the right payments provided for in this Agreement. Each Shareholder who has properly completed, executed and delivered to the Payments Administrator a (i) Transmittal Document and (ii) an Internal Revenue Service Form W-8BEN, W-8BEN-E (or other applicable W-8 Form) or W-9 shall be entitled to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to consideration specified in Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration 2.7.1 hereof with respect to such Certificate thereto. 3063972 4
(or any Company Stock not represented by a Certificateb) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented All shares of Company Common Stock (other than for the treasury shares to be canceled cancelled pursuant to Section 3.01(d2.4.1 hereof and Dissenting Shares) and Dissenting Shares and subject to Section 3.09) each Company Option shall be deemed from and at any time after the Effective Time, for all purposes, Time to evidence represent only the right to receive upon such delivery the portion of the Total Final Merger Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) if any, that is presented to the Exchange Agent, it shall be canceled and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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 due 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stockhereunder.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by All payments to a Shareholder hereunder shall be made pursuant to the instructions provided in such holder’s Transmittal Document; provided that, if a holder of Company Options was an employee of the Company Holders three (3at the time such Company Options were granted or is an employee of the Company at the time any payment in respect of such Company is to be made under this Agreement, Buyer may make such payment to the Company on behalf of such holder and, subject to Section 2.7.3(d) years after hereof, the Effective Time (or Company shall promptly pay such earlier date, immediately prior payment to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretoholder.
(d) If any Certificate Buyer, the Surviving Corporation, or the Payments Administrator shall have been lostdeduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as Buyer, stolen the Surviving Corporation, or destroyed, upon the Payments Administrator is required to deduct and withhold with respect to the making of an affidavit such payment under the Code or under any provision of loss state, local or foreign Tax Law. To the extent that amounts are so withheld by Buyer, the Surviving Corporation, or the Payments Administrator and indemnity by paid to the appropriate Government Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person claiming such Certificate to be lost, stolen or destroyed and, if required by who otherwise would have received the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid payment in respect of which such deduction and withholding was made by Buyer, the Company Stock formerly represented by such Certificate in accordance with this AgreementSurviving Corporation, or the Payments Administrator.
(e) The provisions Payments of this Section 3.04 fair value in respect of Dissenting Shares, if any, pursuant to the GBCC shall applybe made, mutatis mutandisfirst, to Company Optionholders entitled to a from that portion of the Total Final Merger Consideration allocable to such Dissenting Shares pursuant to Section 3.032.7.1 hereof and, with second, by Buyer or the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to Surviving Corporation directly. After any such payments have been made, any such Dissenting Shares shall be mutually agreed by the Acquiror and the Company)cancelled.
(f) The provisions of this Section 3.04 shall applyAt the Effective Time, mutatis mutandis, to Noteholders entitled to a portion the stock transfer books of the Total Consideration pursuant to Section 3.03, with Company shall be closed and there shall be no further registration of transfers of any shares of capital stock thereafter on the Noteholders being required to deliver their applicable Payoff Letterrecords of the Company.
Appears in 1 contract
Samples: Merger Agreement (Costar Group Inc)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shall, at its sole cost and expense, Parent shall appoint an exchange agent (which exchange agent is reasonably acceptable to the Company Company) (the “Exchange Agent”), for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). At or prior to act as the exchange agent in the First Merger; providedEffective Time, however, that Acquiror Parent shall afford the Company the opportunity to review any proposed Contract deposit with the Exchange Agent prior the aggregate Merger Consideration to executionbe paid in respect of the Company Stock. Promptly after the Effective Time (but not later than two (2) Business Days thereafter), the Surviving Corporation shall (and Parent shall accept cause the Company’s reasonable comments thereto. Prior to the Closing DateSurviving Corporation to) send, Acquiror shall or cause the Exchange Agent to mail send, to each holder of record shares of Company Stock entitled to receive a portion of at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions (which shall be in a form reasonably acceptable to Parent and the Company and shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or any posting of bond and effective affidavits of loss in lieu thereof) or Uncertificated Shares to the Exchange Agent) for use in effecting such exchange.
(b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and duly executed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration in respect of the certificates evidencing such Company Stock, in physical Stock represented by a Certificate or electronic formUncertificated Share. Until so surrendered or transferred, as the case may be (be, each such Certificate or Uncertificated Share shall represent after the “Certificates”), to the extent any such Company Stock is represented by a Certificate, in exchange Effective Time for all purposes only the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall Merger Consideration.
(Ac) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion Payment of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Merger Consideration with respect to Uncertificated Shares shall only be made to the Persons in whose name such Uncertificated Shares are registered in the stock transfer records of the Company. If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such payment that (i) either such Certificate (shall be properly endorsed or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith otherwise be canceled; in proper form for transfer and (Bii) following the Person requesting such payment shall pay to the Exchange Agent any transfer or other 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 the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest there shall be paid no further transfers or shall accrue on any portion registration of the Total Consideration payable upon surrender transfers 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent (in which case the Exchange Agent will notify the Surviving Corporation thereof), they shall be automatically canceled and exchanged for all purposesthe Merger Consideration in accordance with the procedures set forth, to evidence only the right to receive the in this ARTICLE 2.
(e) Any portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented Merger Consideration made available to the Exchange Agent, it shall be canceled and exchanged as provided in this Section 3.04(a).
Agent pursuant to Section 2.3(a) that remains unclaimed by the holders of shares of Company Stock twelve (b12) No dividends or other distributions declared or made after the Effective Time with respect to the Acquiror Common Stock with a record date months after the Effective Time shall be returned to Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this Section 2.3 prior to that time shall thereafter look only to Surviving Corporation for payment of the Merger Consideration in respect of such shares without any interest thereon. Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the Surviving Corporation or any of their respective Affiliates shall be liable to any holder of shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Applicable Laws. To the holder of extent permitted by Applicable Law, 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the such holders of Company Holders three Stock two (32) years after the Effective Time (Time, or at such earlier date, date as is immediately prior to the time at which such time when the amounts would otherwise escheat to or become property of any Governmental Authority) , shall become, to the extent permitted by applicable Law, become the property of Acquiror the Surviving Corporation free and clear of any claims or interest of any Person such holders (and their successors, assigns or personal representatives) previously entitled thereto.
(d) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Veritiv Corp)
Surrender and Payment. (a) Prior If a holder of Company Stock surrenders their Company Stock Certificates or other documentary evidence, reasonably satisfactory to Buyer, that legal and beneficial ownership of Company Stock is vested in the holder thereof, together with a completed Letter of Transmittal and any other documents as may be reasonably required by the Paying Agent, in accordance with the instructions set forth therein, at least two Business Days prior to the Closing Date and such holder is the record holder as of the Closing Date, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable then Buyer shall direct the Paying Agent to pay to the holder of such Company Stock, promptly after the Effective Time, an amount in accordance with Section 1.7. At or as soon as practicable after the execution of this Agreement (and in any event within five Business Days following the “Exchange Agent”) to act as the exchange agent in the First Merger; providedexecution of this Agreement), however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior will send to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record holders of Company Stock entitled to receive Stock: (i) a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”Transmittal and (ii) and instructions for use in effecting the surrender of Company Stock Certificates in exchange for payment of the certificates evidencing such Per-Share Merger Consideration relating thereto; provided that the Company Stockshall afford Buyer a reasonable opportunity, and in physical or electronic form, as the case may be (the “Certificates”)any event not less than five days, to the extent any review and comment upon such documents and shall incorporate Buyer’s comments thereto prior to distribution. If a holder of Company Stock surrenders their Company Stock Certificates, or provides other documentary evidence, reasonably satisfactory to Buyer, that legal and beneficial ownership of Company Stock is represented by a Certificatevested in the holder thereof, in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a completed Letter of 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 (3) any time after two Business Days prior to the Closing Date and such holder is the record holder as of the Closing Date, then the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock is represented by shall be paid as soon as reasonably practical thereafter. Upon surrender of a Certificate) (together with a Letter of Transmittal duly completed and validly executed Company Stock Certificate for exchange in accordance with the instructions thereto Letter of Transmittal (or upon the submission of other documentary evidence, reasonably satisfactory to Buyer, that legal and any customary tax forms that beneficial ownership of Company Stock is vested in the Exchange Agent may reasonably require in connection therewithholder thereof), issue to together with a duly executed Letter of Transmittal and such other documents as may be reasonably required by Buyer or the Paying Agent, at or after the Effective Time the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion entitled to receive in exchange therefor payment of an amount equal to the Total Per-Share Merger Consideration payable upon surrender multiplied by the number of any Certificate (or any Company Common Stock not represented by a Certificate)Equivalent Shares so surrendered. Until so surrenderedsurrendered as contemplated by this Section 1.12, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares share of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed deemed, from and after the Effective Time, for all purposes, to evidence represent only the right to receive upon such surrender the portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled Per-Share Merger Consideration applicable thereto and exchanged as provided in this Section 3.04(a).
(b) No dividends or other distributions declared or made after the Effective Time with respect to the Acquiror Common Stock with a record date after the Effective Time shall no interest will be paid to or accrued for the holder benefit 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 on the Merger Consideration payable upon the surrender of such Certificate (or Company Stock. If any Company Stock not represented by Certificate shall have been lost, stolen or destroyed, Buyer or the Paying Agent may, in its discretion and as a Certificate) until condition precedent to the holder payment of the applicable portion of Merger Consideration, require the owner of such Certificate (lost, stolen or destroyed Company Stock not represented Certificate to provide an appropriate affidavit, in form and substance reasonably acceptable to Buyer and the Paying Agent, and to post a bond in customary amount as Buyer or the Paying Agent may reasonably require, each of which provides for indemnity by a Certificate) shall surrender such Certificate (owner against any claim that may be made against Buyer, the Paying Agent 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 Surviving Corporation with respect to such shares Company Stock Certificate. None of Acquiror Common Stock, and (ii) at the appropriate payment dateBuyer, the amount Company, Merger Sub, the Paying Agent or the Surviving Corporation shall be liable to any Person in respect of dividends any portion of the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other distributionsprovision of this Agreement, with a record date after any portion of the Effective Time but prior Merger Consideration that remains undistributed to surrender and a payment date occurring after surrender, payable with respect to such whole shares the holders of Acquiror Common Stock.
(c) Any Company Stock as of the second anniversary of the Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when earlier date on which any portion of the amounts Merger Consideration would otherwise escheat to or become the property of any Governmental Authority) shall becomeEntity), shall, to the extent permitted by applicable LawLaw be delivered by the Paying Agent to, and shall become the property of, the property of Acquiror Surviving Corporation, free and clear of any all 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing Date, Acquiror shall, at its sole cost and expense, appoint an Parent will act as exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as for the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder purpose of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the exchanging certificates evidencing such Company Stock, in physical or electronic form, as the case may be representing Shares (the “Certificates”) for the Merger Consideration (less the Escrow Holdback). Immediately following the Effective Time, Parent will make available the Merger Consideration (less the Escrow Holdback) to be paid in respect of the Shares. At the Effective Time or promptly thereafter, Company stockholders (each, a “Stockholder” collectively, the “Stockholders”) will surrender the Certificates to the extent Exchange Agent for cancellation together with 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 Certificates to the Exchange Agent) for use in such exchange. The parties agree that any Stockholder that delivers Certificates, together with such Company letter of transmittal and instructions at the Effective Time, shall receive at the Effective Time certificates (without restrictive legends or other restrictions on transfer other than restrictions imposed by applicable law) evidencing the shares of Parent Common Stock is represented by a Certificate, in exchange for issuable to such Stockholder pursuant to Section 2.02.
(b) Each holder of Shares that have been converted into the right to receive the applicable portion of Total Merger Consideration payable less the Escrow Holdback will be entitled to such holder. The receive, upon surrender to the Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (, together with a Letter properly completed letter of 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 (3) Business Days prior to the Closing Datetransmittal, the portion of Merger Consideration less the Total Consideration with respect to such Certificate (or any Company Stock not Escrow Holdback payable for each Share represented by a such Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive . All such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest funds shall be paid or shall accrue on any portion to the holders of Shares by wire transfer to accounts specified in their respective letters of transmittal or, upon the Total Consideration payable upon surrender request of any Certificate (or any Company Stock not represented such holder, by a Certificate)check. Until so surrendered, each outstanding such Certificate (or any Company Stock not represented by a Certificate) that prior to shall represent after less the Effective Time represented shares for all purposes only the right to receive such Merger Consideration less the Escrow Holdback.
(c) If any portion of Company Stock (the Merger Consideration less the Escrow Holdback is to be paid to a Person other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) Person in whose name the surrendered Certificate is registered, it shall be deemed from a condition to such payment that the Certificate 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 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 the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is Certificates are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the Merger Consideration less the Escrow Holdback provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article 2.
(be) No dividends Any portion of the Merger Consideration (less the Escrow Holdback) made available to the Exchange Agent pursuant to Section 2.03(a) (and any interest or other distributions declared or made after income earned thereon) that remains unclaimed by the Effective Time with respect to the Acquiror Common Stock with a record date holders of Shares twenty (20) Business Days after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged Shares for the Merger Consideration less the Escrow Holdback in accordance with this Section 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration less the Escrow Holdback in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately Immediately prior to such time when the amounts remaining unclaimed by holders of Shares would otherwise escheat to or become property of any Governmental Authority) governmental authority, such unclaimed amounts shall become, to the extent permitted by applicable Lawlaw, the property of Acquiror Parent free and clear of any claims or interest of any Person Persons previously entitled thereto.
(df) If any Certificate shall have been lost, stolen or destroyed, upon Any portion of the making of an affidavit of loss and indemnity by the Person claiming such Certificate Merger Consideration made available to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.032.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)upon demand.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shallthe Company shall provide Meadowbrook with a list of the names and addresses of each of the Company's stockholders for the purpose of assisting Meadowbrook in exchanging certificates which, at its sole cost and expense, appoint an exchange agent reasonably acceptable immediately prior to the Effective Time represented issued and outstanding shares of Company Common, for the consideration set forth in Section 2.1(c) (the “Exchange Agent”) to act as "Merger Consideration"). Promptly after the exchange agent in the First Merger; providedEffective Time, howeverMeadowbrook shall send, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror or shall cause the Exchange Agent to mail be sent, to each holder of record of shares of Company Stock entitled to receive a portion of at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting such exchange (which shall specify that the surrender delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates evidencing such representing shares of Company Stock, in physical or electronic form, as the case may be (the “Certificates”), Stock to the extent any such Meadowbrook).
(b) Holders of shares of Company Stock is represented by that have been converted into a Certificate, in exchange for the right to receive the applicable portion Merger Consideration, upon surrender to Meadowbrook of Total Consideration payable to a certificate or certificates representing such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record shares of Company Stock Stock, together with a properly completed letter of transmittal covering such shares, will be entitled to receive a portion the Merger Consideration payable in respect of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate)Stock. Until so surrendered, each outstanding Certificate (or any certificate representing shares of the Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive such Merger Consideration.
(c) The Meadowbrook Common comprising the Merger Consideration shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of any liens, pledges or encumbrances of any kind except any restrictions on subsequent sale by the Securityholders imposed by any federal or state securities laws or regulations; provided however that each Securityholder hereby agrees that it shall not effect any sale of Meadowbrook Common issued pursuant to this Agreement for a period of twelve (12) months following the Effective Time.
(d) If any portion of the Total ConsiderationMerger Consideration is to be paid to a person other than the registered holder of shares of Company Stock represented by the certificate or certificates surrendered in exchange therefor, it shall be a condition to such payment that the certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and accompanied by all documents required to evidence and effect the transfer and that the person requesting such payment shall pay to Meadowbrook any transfer or other taxes required as a result of such payment to a person other than the registered holder of shares of Company Stock or establish to the satisfaction of Meadowbrook that such tax has been paid or is not payable.
(e) After the Effective Time, there shall be no further registration of transfers of Company Stock. If If, after the Effective Time, any Certificate (or any certificates representing shares of Company Stock not represented by a Certificate) is are presented to the Exchange AgentSurviving Corporation, it they shall be canceled and exchanged as for the consideration provided for, and in accordance with the procedures set forth, in this Section 3.04(a)Article II.
(b) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(cf) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the holders of shares of Company Holders Stock three (3) years after the Effective Time (or such earlier date, immediately date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authoritygovernmental entity) shall becomeshall, to the extent permitted by applicable Lawlaw, become the property of Acquiror Meadowbrook free and clear of any claims or interest of any Person person previously entitled thereto.
(dg) If any Certificate shall have been lostNo dividends, stolen interest or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 other distributions with respect to such Certificate, Meadowbrook Common constituting part of the Exchange Agent Merger Consideration shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid to the holder of any unsurrendered certificates representing shares of Company Stock until such certificates are surrendered as provided in this Section 2.3. Upon such surrender, there shall be paid, without interest, to the person in whose name the certificates representing Meadowbrook Common into which such shares of Company Stock were converted are registered, all dividends, interest and other distributions payable in respect of the such shares of Company Stock formerly represented by such Certificate on a date subsequent to, and in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu respect of a Certificate (in a form to be mutually agreed by record date after, the Acquiror and the Company)Effective Time.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Meadowbrook Rehabilitation Group Inc)
Surrender and Payment. (a) Prior At the Effective Time, all Company Interests outstanding immediately prior to the Closing DateEffective Time shall automatically be cancelled and retired and shall cease to exist, Acquiror shall, at its sole cost and expense, appoint an exchange agent reasonably acceptable each Member shall cease to have any rights as a member of the Company Company.
(the “Exchange Agent”b) to Holdings shall act as the exchange agent in the First Merger; provided.
(c) As promptly as practicable following the date hereof and in any event not later than five Business Days thereafter, however, that Acquiror Holdings shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, Interests a letter of transmittal in substantially the form attached hereto as Exhibit D C (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Interests in exchange for the right to receive the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate 2.8(b). Holdings shall, no later than the later of (only to i) the extent such Company Stock is represented by a CertificateClosing Date or (ii) (together with five Business Days after receipt of a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, and any other customary tax forms documents that the Exchange Agent Holdings may reasonably require in connection therewith) at least three (3) Business Days prior , deliver to the Closing Date, the Member such Member’s portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 Stock is represented by a Certificate) (together with a Merger Consideration. Until fully executed 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrenderedis received, each outstanding Certificate (or any Company Stock not represented by a Certificate) Interest that prior to the Effective Time represented shares of an ownership interests in the Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) Interests shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after Merger Consideration as provided in Section 2.8(b).
(d) Each Member shall also be entitled to any amounts that may be payable in the future in respect of the Company Interests outstanding prior to the Effective TimeTime as provided in this Agreement and the Promissory Note and on account of the Post-Closing Adjustment, any Certificate (or any Company Stock not represented by a Certificate) is presented at the respective time and subject to the Exchange Agentcontingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Note, no interest shall be paid or accrued for the benefit of Members on the Merger Consideration.
(e) If any portion of the Merger Consideration is to be paid or delivered to a Person other than the Person in whose name the Company Interest is registered, it shall be canceled a condition to such payment that (i) such Person deliver proper evidence showing its ownership of the Company Interests, as determined in sole discretion of Holdings, and exchanged (ii) the Person requesting such payment shall pay to Holdings any transfer or other Tax required as provided in this Section 3.04(a)a result of such payment to a Person other than the registered holder of such Company Interest or establish to the reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(bf) No dividends or other distributions declared or made after Any portion of the Effective Time with respect to Merger Consideration that remains unclaimed by the Acquiror Common Stock with a record date Members three months after the Effective Time shall be paid returned to Holdings, upon demand, and any such Member who has not properly executed and returned the Letter of Transmittal in accordance with this Section 2.11 prior to that time shall thereafter look only to Holdings for payment of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any 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 Interests 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 amounts paid to the holder of the certificates representing shares of Acquiror Common Stock issued in exchange therefora public official pursuant to applicable abandoned property, without interest, (i) the amount of dividends escheat or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Acquiror 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 a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) similar Laws. Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) Members two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental AuthorityEntity) shall become, to the extent permitted by applicable Law, the property of Acquiror Holdings 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 by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (GigCapital2, Inc.)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shallParent shall appoint American Stock Transfer & Trust Company, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company LLC (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration as promptly as practicable after the Effective Time (i) certificates representing Company Common Shares (the “Certificates”) or (ii) uncertificated Company Common Shares (the “Uncertificated Shares”). No later than ten (10) Business Days prior to act as the exchange agent in the First Merger; providedEffective Time, however, that Acquiror Parent shall afford the Company the opportunity to review any proposed Contract enter into an agreement with the Exchange Agent in form and substance reasonably acceptable to the Special Committee and Parent (the “Exchange Agent Agreement”) pursuant to which Parent shall appoint the Exchange Agent. At or prior to executionthe Effective Time, and Merger Sub (or Parent on behalf of Merger Sub) shall accept the Company’s reasonable comments thereto. Prior make available to the Closing DateExchange Agent the aggregate Merger Consideration to be paid in respect of the shares represented by such Certificates and the Uncertificated Shares. Such funds may be invested by the Exchange Agent as directed by Pxxxxx; provided that (i) such funds shall only be invested in the manner provided in the Exchange Agent Agreement, Acquiror (ii) no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Shares entitled to receive such consideration pursuant to Section 2.02(a), (iii) to the extent necessary to pay the Merger Consideration, the Surviving Corporation (or Parent on behalf of the Surviving Corporation) shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Shares entitled to receive such consideration and (iv) no such investment shall have a maturity that would reasonably be expected to prevent or delay payments to be made pursuant to this Agreement. Any net profit resulting from such investments or interest or income produced by such investments shall be payable to the Surviving Corporation. As promptly as practicable after the Effective Time (but no later than five (5) Business Days thereafter), Parent shall cause the Surviving Corporation to send, or shall cause the Exchange Agent to mail send, to each holder of record of Company Stock Common Shares entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01, Section 2.02(a) at the Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the form attached hereto as Exhibit D Company and Parent and finalized prior to the Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange (a the “Letter of Transmittal”).
(b) and instructions for use in effecting the surrender Each holder of the certificates 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 Common Shares that have been converted into the right to receive the applicable portion of Total Merger Consideration payable shall be entitled to such holder. The receive, upon (i) surrender to the Exchange Agent shall of a Certificate (A) on the Closing Dateor affidavit of loss, issue to each holder theft or destruction of record of Company Stock entitled to receive a portion of the Total Consideration such Certification pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (2.06), together with a Letter of Transmittal duly properly completed and validly executed Letter of Transmittal in accordance with the instructions thereto (and customary tax forms that such other documents as may reasonably be requested by the Exchange Agent), or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably require request) in connection therewith) at least three (3) Business Days prior to the Closing Datecase of a book-entry transfer of Uncertificated Shares, the Merger Consideration payable for each Company Common Share pursuant to Section 2.02(a) represented by such Certificate or for each Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall, subject to Section 6.07, represent after the Effective Time for all purposes only the right to receive such Merger Consideration.
(c) If any portion of the Total Merger Consideration with respect is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, as a condition to such Certificate payment, (or any Company Stock not represented by a Certificatei) so surrendered and the either such Certificate shall forthwith be canceled; properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (Bii) following the Person requesting such payment shall pay to the Exchange Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(d) After the Effective Time, with respect to any holder there shall be no further registration of record transfers of Company Stock entitled to receive a portion of Common Shares. If, after the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total Consideration pursuant Effective Time, Certificates or Uncertificated Shares are presented to the preceding clause (A)Surviving Corporation or the Exchange Agent, no later than three (3) Business Days after receipt of a Certificate (only to they shall be canceled and exchanged for the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed Merger Consideration provided for, and validly executed in accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require procedures set forth, in connection therewith), issue to the holder of such Certificate this ARTICLE 2.
(or any Company Stock not represented by a Certificatee) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or shall will accrue on any cash payable to holders of Certificates or Uncertificated Shares pursuant to this ARTICLE 2. Any portion of the Total 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 made available to the Effective Time represented shares of Company Stock (other than for the shares to be canceled Exchange Agent pursuant to Section 3.01(d2.03(a) and Dissenting that remains unclaimed by the holders of Company Common Shares and subject to Section 3.09twelve (12) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the Acquiror Common Stock with a record date months after the Effective Time shall be paid returned to the holder of Parent, upon demand, and 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 who has not exchanged such Company Common Shares for the surrender Merger Consideration in accordance with this Section 2.03 prior to that time shall thereafter look only to Parent and the Surviving Corporation for payment of the Merger Consideration in respect 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 Common Shares without 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stockinterest thereon.
(cf) None of Parent, Merger Sub, the Company, the Surviving Corporation, the Exchange Agent or any other Person shall be liable to any Person in respect of any portion of the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, holders immediately prior to such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Acquiror the Surviving Corporation, free and clear of any all claims or of interest of any Person previously entitled thereto.
(dg) If From and after the Effective Time, holders of Company Common Shares shall cease to have any Certificate shall have been lostrights as Company shareholders, stolen except as provided herein or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this AgreementApplicable Law.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (Sokol David L)
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shallParent shall designate PNC Bank, at its sole cost and expenseNational Association or, appoint an exchange agent if not PNC Bank, National Association, then a United States bank, trust company or other party reasonably acceptable to the Company Company, to act as payment agent (the “Exchange Paying Agent”) to act as the exchange agent in the First Merger; provided.
(b) At the Effective Time, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent all Shares outstanding immediately prior to execution, the Effective Time shall automatically be cancelled and retired and shall accept cease to exist, and, subject to Section 2.10, each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Company’s reasonable comments thereto. .
(c) Prior to or as promptly as practicable following the Closing Datedate hereof and in any event not later than two (2) Business Days thereafter, Acquiror Paying Agent shall cause the Exchange Agent to mail send to each holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01, a letter of transmittal in substantially the form attached hereto as Exhibit D B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right to receive the applicable portion of Total Consideration payable to Per-Share Cash-Out Amount that such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock is entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate 2.08(b). Paying Agent shall, no later than the later of (only to i) three (3) Business Days after the extent such Company Stock is represented by Closing Date or (ii) three (3) Business Days after receipt of a Certificate) (, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto thereto, such documents that are required under Section 2.08(b), and any other customary tax forms documents that the Exchange Paying Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 deliver to the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect Per-Share Cash-Out Amount that such Stockholder is entitled to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted receive pursuant to Section 3.01(a) (after giving effect to Section 3.01(d2.08(b)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no No interest shall be paid or shall accrue on any portion of the Total Consideration cash 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationPer-Share Cash-Out Amount provided for in Section 2.08(b). If any Certificate is presented to Parent after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a).
(b) No dividends or 2.11. Notwithstanding any other distributions declared or made after provision of this Agreement, the Effective Time with respect Parties acknowledge and agree that the Per-Share Cash-Out Amount payable to any Stockholder as contemplated in this Section 2.11 will be based upon the Estimated Purchase Price and that the payment of the Estimated Purchase Price at Closing as contemplated in Article III, subject to the Acquiror Common Stock with a record date after post-Closing adjustments set out therein, shall satisfy the Effective Time shall be paid obligations of Parent and Merger Sub to the holder of make 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 payment 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, and (ii) Per-Share Cash-Out Amount 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by the Company Holders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror free and clear of any claims or interest of any Person previously entitled theretoClosing.
(d) If any Certificate shall have been lostNotwithstanding anything herein to the contrary, stolen or destroyed, upon the making none of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange AgentParent, the posting by such Person of a bond, in such reasonable amount as Surviving Corporation nor the Company may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Paying Agent shall issue, in exchange be liable to any Stockholder for such lost, stolen any cash or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled other payment delivered to a portion of the Total Consideration Governmental Authority pursuant to Section 3.03any abandoned property, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company)escheat or similar Laws.
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Closing DateEffective Time, Acquiror shallBuyer shall appoint a depositary (the “Depositary”) for the purpose of exchanging certificates representing Company Common Shares for the Amalgamation Consideration. The Depositary shall at all times be a United States commercial bank having a combined capital and surplus of at least $500,000,000. Pursuant to the terms of the Escrow Agreement to be entered into pursuant to the Pledge and Escrow Procedures between the Escrow Agent, at its sole cost Buyer and expense, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Escrow Agreement”), by no later than immediately prior to the Effective Time, Buyer and the Company shall instruct the escrow agent (the “Escrow Agent”) under the Escrow Agreement to act as deposit with the exchange agent Depositary $65,618,962 in cash (the “Escrowed Amalgamation Consideration Amount”) from the assets then currently held in the First Merger; providedescrow fund relating to the Escrow Agreement (the “Escrow Fund”) and to pay to Buyer any amounts remaining in the Escrow Fund after payment of the Escrowed Amalgamation Consideration Amount and the Calypso Payment (as defined herein). By no later than immediately prior to the Effective Time, however, that Acquiror Buyer shall afford the Company the opportunity to review any proposed Contract deposit with the Exchange Agent Depositary cash in an amount in excess of the Escrowed Amalgamation Consideration Amount necessary, when combined with the Escrowed Amalgamation Consideration Amount, for payment of the Amalgamation Consideration as provided in Section 2.1 upon surrender of a certificate or certificates that immediately prior to executionthe Effective Time represented outstanding Company Common Shares in the manner provided in this Section 2.2. Promptly after the Effective Time, and shall accept the Company’s reasonable comments thereto. Prior to the Closing DateBuyer will send, Acquiror shall or will cause the Exchange Agent Depositary to mail send, but in no event later than five business days after the Effective Time, to each holder of record of Company Stock entitled to receive a portion of Common Shares at the Total Consideration pursuant to Section 3.01, Effective Time a letter of transmittal for use in such exchange (which shall specify that the form attached hereto as Exhibit D (a “Letter delivery shall be effected, and risk of Transmittal”loss and title shall pass, only upon proper delivery of the certificates representing Company Common Shares to the Depositary) and instructions for use in effecting the surrender of the certificates 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, Common Shares in exchange for the Amalgamation Consideration.
(b) Each holder of Company Common Shares that have been converted into a right to receive the applicable portion Amalgamation Consideration, upon surrender to the Depositary of Total Consideration payable to a certificate or certificates properly representing such holder. The Exchange Agent shall (A) on the Closing DateCompany Common Shares, issue to each holder together with a properly completed letter of record of transmittal covering such Company Stock Common Shares, will be entitled to receive a portion the Amalgamation Consideration payable in respect of the Total Consideration pursuant to Section 3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and such certificate shall, after the Effective Time, represent for all purposes, to evidence only the right to receive the portion of the Total such Amalgamation Consideration. If after the Effective Time, any Certificate (or 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) No dividends or other distributions declared or made after the Effective Time with respect to the 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing If any portion of the Amalgamation Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed is to be paid to a Person (as defined herein) other than the registered holder of the Company Common Shares represented by the Company Holders three (3) years after the Effective Time (certificate or such earlier datecertificates surrendered in exchange therefor, immediately prior it shall be a condition to such time when payment that the amounts would certificate or certificates so surrendered shall be properly endorsed or otherwise escheat to or become property of any Governmental Authority) be in proper form for transfer and that the Person requesting such payment shall become, pay to the extent permitted by applicable LawDepositary any transfer or other Taxes (as defined herein) required as a result of such payment to a Person other than the registered holder of such Company Common Shares or establish to the satisfaction of the Depositary that such Tax (as defined herein) has been paid or is not payable. Buyer or the Depositary shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement such amounts as Buyer or the Depositary are required to deduct and withhold under the Internal Revenue Code of 1986, as amended (the property “Code”), or any provision of Acquiror free and clear of any claims state, local or interest of any Person previously entitled thereto.
(d) If any Certificate shall have been lostforeign tax law, stolen or destroyed, upon with respect to the making of an affidavit such payment. To the extent that amounts are so withheld by Buyer or the Depositary, such withheld amounts shall be treated for all purposes of loss and indemnity by this Agreement as having been paid to the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, 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 Certificate, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of whom such deduction and withholding was made by Buyer or the Company Stock formerly represented by such Certificate in accordance with Depositary. For purposes of this Agreement.
, “Person” means any natural person, firm, individual, company, corporation, limited liability company, partnership, association, joint venture, company, business trust, trust or any other entity or organization, whether incorporated or unincorporated, including a Governmental Entity (e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Companyas defined herein).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) Prior 1.8.1 At the Effective Time, all Shares and all Options outstanding immediately prior to the Closing DateEffective Time shall automatically be canceled and retired and shall cease to exist, Acquiror shalland each holder of a certificate formerly representing any Shares (each, at its sole cost and expense, appoint an exchange agent reasonably acceptable to the Company (the a “Exchange AgentCertificate”) to act as the exchange agent in the First Merger; provided, however, that Acquiror shall afford the Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto. Prior to the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled any Options shall cease to receive have any rights as a portion stockholder of the Total Consideration pursuant Company or a holder of Options, as applicable.
1.8.2 As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, the Stockholder Representative shall deliver to Section 3.01, a letter each holder of transmittal in the form attached hereto as Exhibit D (a “Letter of Transmittal”) and CardCash Common Stock instructions for use in effecting the surrender of the certificates 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, Certificates in exchange for the right applicable portion of Closing Merger Consideration pursuant to receive Section 1.7.1. The Stockholder Representative shall, no later than the later of (a) the Closing Date and (b) five (5) Business Days after receipt of a Certificate, deliver (or cause to be delivered) to the holder of such Certificate the applicable portion of Total Consideration payable to such holder. The Exchange Agent shall (A) on the Closing Date, issue to each holder of record of Company Stock entitled to receive a portion of the Total Merger Consideration pursuant to Section 3.01 that has delivered a Certificate (only to 1.7.1 and the extent such Company Stock is represented by a Certificate) (together with a Letter of 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 (3) Business Days prior to the Closing Date, the portion of the Total Consideration Proceeds Allocation Document with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Total Consideration pursuant to Section 3.01 that did not receive such portion of the Total 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 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 the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Total Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the portion of the Total Consideration into which such Company Common Shares and Company Preferred Shares, as applicable, have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(d)) in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Total Closing Merger Consideration payable deliverable 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 represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting Shares and subject to Section 3.09) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Total ConsiderationClosing Merger Consideration as provided in Section 1.7.1 and the Proceeds Allocation Document. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange AgentStockholder Representative, it shall be canceled cancelled and exchanged as provided in this Section 3.04(a)1.8.2.
1.8.3 Any portion of the Closing Merger Consideration that remains unclaimed by the CardCash Stockholders two (b2) No dividends or other distributions declared or made after the Effective Time with respect to the Acquiror Common Stock with a record date months after the Effective Time shall be returned to RDE, upon demand, and any such CardCash Stockholder who has not exchanged Certificates for the Closing Merger Consideration in accordance with this Section 1.8.3 prior to that time shall thereafter look only to RDE for payment of the Closing Merger Consideration. Notwithstanding the foregoing, RDE shall not be liable to any holder of Certificates for any amounts paid to the holder of any unsurrendered Certificate (a public official pursuant to applicable abandoned property, escheat 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)similar Laws. 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, 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 occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(c) Any Closing Consideration and Non-Accredited Holder Cash Consideration amounts remaining unclaimed by the Company Holders three CardCash Stockholders two (32) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Law, the property of Acquiror RDE free and clear of any claims or interest of any Person previously entitled thereto.
(d) If any Certificate 1.8.4 RDE shall have been lostpay, stolen or destroyedcause the Surviving Corporation to pay, upon all charges and expenses, including those of the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, the posting by such Person of a bondStockholder Representative, in such reasonable amount as connection with the Company 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 of CardCash Common Stock for such lost, stolen or destroyed Certificate, the Closing Consideration or Non-Accredited Holder Cash Consideration to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this AgreementMerger Consideration.
(e) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Company Optionholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Company Optionholders being required to deliver an option cancellation agreement in lieu of a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall apply, mutatis mutandis, to Noteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, with the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Samples: Merger Agreement (RDE, Inc.)
