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 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”). (c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10. (d) 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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto. (g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares Interests outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares Interests (each, a “Certificate”) shall cease to have any rights as a stockholder member of the Target Company; or (ii) in the case of uncertificated sharesInterests, such holder shall cease to have any rights as a stockholder 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares Target Company Membership Interest a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.8(a). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b2.8(a) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Target Company Membership Interest (other than Dissenting SharesInterests) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.8(a). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder Member shall also be entitled to any amounts that may be payable in the future in respect of the Shares Interests formerly represented by such Certificate as provided in this AgreementAgreement 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 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 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 Members ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares Interests shall be returned to Holdings, upon demand.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.)
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 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares Target Company Common Stock a letter of transmittal in the form and substance reasonably satisfactory to the parties attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) 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 AgreementAgreement 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 Stockholders 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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 4 contracts
Samples: Merger Agreement (AIRO Group Holdings, Inc.), Merger Agreement (AIRO Group Holdings, Inc.), Merger Agreement (AIRO Group Holdings, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares Interests outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares Interests (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated sharesInterests, such holder shall cease to have any rights as a stockholder 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares Interests a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares Target Company Interests (other than Dissenting SharesInterests) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder Member shall also be entitled to any amounts that may be payable in the future in respect of the Shares 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 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 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 Members ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares Interests shall be returned to Holdings, upon demand.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares Interests outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares Interests (each, a “Certificate”) shall cease to have any rights as a stockholder member of the Target Company; or (ii) in the case of uncertificated sharesInterests, such holder shall cease to have any rights as a stockholder 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares Target Company Membership Interest a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Target Company Membership Interest (other than Dissenting SharesInterests) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder Member shall also be entitled to any amounts that may be payable in the future in respect of the Shares Interests formerly represented by such Certificate as provided in this AgreementAgreement 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 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 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 Members ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares Interests shall be returned to Holdings, upon demand.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior to Parent shall appoint an agent previously approved by the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”)) and enter into an agreement (in a form reasonably acceptable to the Company) with the Exchange Agent for the purpose of exchanging for the Merger Consideration certificates representing Shares (the “Certificates”) and making the payments described in Section 2.05. Sub or one of its Affiliates shall deposit with the Exchange Agent, at or prior to the Effective Time, the Merger Consideration to be paid in respect of the Certificates and the cash necessary to make the payments described in Section 2.05. These amounts shall not be used for any other purpose, and Parent and Sub shall remain liable for any shortfall in such amounts and for the ultimate payment of the Merger Consideration and the amounts described in Section 2.05.
(cb) As promptly soon as reasonably practicable following after the date hereof Effective Time and in any event not later than five two (52) Business Days thereafterfollowing the Closing Date, Holdings the Exchange Agent shall mail to each holder of record of Shares whose Shares were converted into Merger Consideration pursuant to Section 2.02(a) (A) a letter of transmittal (which shall specify that, in the case of certificated Shares, delivery shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of Certificates to the Exchange Agent and shall be in such form and substance have such other provisions as Parent and the Exchange Agent may agree and which are reasonably satisfactory to the parties Company), and (a “Letter of Transmittal”B) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b)Consideration. Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the Each holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate Shares that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence have been converted into the right to receive the portion Merger Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a Certificate or book-entry share, together with a properly completed letter of transmittal, the Merger Consideration payable for each Share formerly represented by a Certificate or book-entry share. Until so surrendered or transferred, as provided in Section 2.8(b). If the case may be, each such Certificate or book-entry share shall represent after the Effective Time, any Certificate is presented Time for all purposes only the right to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10receive the Merger Consideration.
(d) 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.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate or book-entry share is registered, it shall be a condition to such delivery payment that (i) either such Certificate or book-entry share shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax Taxes 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fd) After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or book-entry share are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article II.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the Target Company Stockholders ninety (90) days holders of Shares twelve months after the Effective Time shall be returned to Holdings, the Surviving Corporation or one of its Affiliates upon demand, and any such Target Company Stockholder holder who has not exchanged Certificates such Shares for the Merger Consideration in accordance with this Section 2.10 2.03 prior to that time shall thereafter look only to Holdings Parent or the Surviving Corporation for delivery payment of the Merger ConsiderationConsideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Holdings none of the Exchange Agent, Parent, the Surviving Corporation or any of its Affiliates shall not be liable to any holder of Certificates Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretolaws.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 3 contracts
Samples: Merger Agreement (Mueller Industries Inc), Merger Agreement (Tecumseh Products Co), Merger Agreement (Tecumseh Products Co)
Surrender and Payment. (a) At Promptly following the Effective Timedate hereof, all Shares outstanding immediately prior Parent shall appoint an exchange agent acceptable to the Effective Time shall automatically Company, acting reasonably (which may be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Parent’s transfer agent appointed by Holdingsfor the Parent Shares, shall which will in any event be deemed acceptable to the Company), to act as the exchange agent in the Merger (the “Exchange Agent”).
(cb) As promptly as practicable following the date hereof and Promptly, but in any no event not later than five (5) Business Days thereafterafter the date hereof, Holdings shall mail to each holder of Shares the Company will prepare a letter of transmittal and other transmittal materials in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit F (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates a certificate prior to the Closing representing any Shares (each, a “Certificate”) in exchange for the applicable portion of Merger Consideration the consideration pursuant to Section 2.8(b2.08(c). Holdings Such Letter of Transmittal and related materials shall be subject to Parent’s (and the Exchange Agent’s) review and comment, and promptly following approval thereof by Parent, the Exchange Agent shall mail the same to each Stockholder. The Exchange Agent shall, no later than ten (10) Business Days after the later of (i) the Closing Date or and (ii) five (5) Business Days after its receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings Parent or the Exchange Agent may reasonably require in connection therewith, deliver with respect to such Certificate so surrendered, each as provided in Section 2.08(c), issue to the holder of such Certificate such holder’s portion Pro Rata Share of Closing Share Payment, together with delivery of evidence of direct book entry registration for the Merger Consideration Parent Shares issuable as provided the Closing Share Payment in Section 2.8(ba form reasonably satisfactory to the Company (if before the Closing) with respect to or the Stockholder Representative (if after the Closing), and such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrenderedsurrendered and cancelled, each outstanding Certificate that prior to the Effective Time represented Shares shares of Company Common Stock (other than Dissenting SharesShares or Shares cancelled pursuant to Section 2.08(b)) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration Closing Share Payment as provided in Section 2.8(b2.08(c) and any additional cash payments or issuance and delivery of additional Parent Shares (if any) as contemplated by Section 2.17 and by Section 2.19 (but subject to any adjustments and/or forfeitures as set forth therein). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(c) No interest shall be paid or accrued for the benefit of Stockholders on the Estimated Closing Merger Consideration or on any additional amounts that may thereafter become payable as Total Merger Consideration.
(d) 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 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 Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration Closing Share Payment made available to the Exchange Agent that remains unclaimed by the Target Company Stockholders ninety (90) days after six months after the Effective Time shall be returned to Holdingsthe Surviving Corporation or its designee, upon demand, and any such Target Company Stockholder Stockholders who has have not exchanged Certificates for such Stockholder’s portion of the Merger Consideration Closing Share Payment in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings the Surviving Corporation for delivery payment of the Merger Consideration. Notwithstanding the foregoing, Holdings 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 Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any its portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demandClosing Share Payment.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Vireo Growth Inc.), Agreement and Plan of Merger (Vireo Growth Inc.)
Surrender and Payment. (a) At Promptly following the Effective Timedate hereof, all Shares outstanding immediately prior Parent shall appoint an exchange agent acceptable to the Effective Time shall automatically Company, acting reasonably (which may be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Parent’s transfer agent appointed by Holdingsfor the Parent Shares, shall which will in any event be deemed acceptable to the Company), to act as the exchange agent in the Merger (the “Exchange Agent”).
(cb) As promptly as practicable following the date hereof and Promptly, but in any no event not later than five (5) Business Days thereafterafter the date hereof, Holdings shall mail to each holder of Shares the Company will prepare a letter of transmittal and other transmittal materials in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit F (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates a certificate prior to the Closing representing any Shares (each, a “Certificate”) in exchange for the applicable portion of Merger Consideration the consideration pursuant to Section 2.8(b2.08(c). Holdings Such Letter of Transmittal and related materials shall be subject to Parent’s (and the Exchange Agent’s) review and comment, and promptly following approval thereof by Parent, the Exchange Agent shall mail the same to each Stockholder. The Exchange Agent shall, no later than ten (10) Business Days after the later of (i) the Closing Date or and (ii) five (5) Business Days after its receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings Parent or the Exchange Agent may reasonably require in connection therewith, deliver with respect to such Certificate so surrendered, each as provided in Section 2.08(c), issue to the holder of such Certificate such holder’s portion Pro Rata Share of Closing Share Payment, together with delivery of evidence of direct book entry registration for the Merger Consideration Parent Shares issuable as provided the Closing Share Payment in Section 2.8(ba form reasonably satisfactory to the Company (if before the Closing) with respect to or the Stockholder Representative (if after the Closing), and such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrenderedsurrendered and cancelled, each outstanding Certificate that prior to the Effective Time represented Shares shares of Company Stock (other than Dissenting SharesShares or Shares cancelled pursuant to Section 2.08(b)) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration Closing Share Payment as provided in Section 2.8(b2.08(c) and any additional cash payments or issuance and delivery of additional Parent Shares (if any) as contemplated by Section 2.17 and by Section 2.19 (but subject to any adjustments or forfeitures as set forth therein). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(c) No interest shall be paid or accrued for the benefit of Stockholders on the Estimated Closing Merger Consideration or on any additional amounts that may thereafter become payable as Total Merger Consideration.
(d) 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 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 Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration Closing Share Payment made available to the Exchange Agent that remains unclaimed by the Target Company Stockholders ninety (90) days after six months after the Effective Time shall be returned to Holdingsthe Surviving Corporation or its designee, upon demand, and any such Target Company Stockholder Stockholders who has have not exchanged Certificates for such Stockholder’s portion of the Merger Consideration Closing Share Payment in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings the Surviving Corporation for delivery payment of the Merger Consideration. Notwithstanding the foregoing, Holdings 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 Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any its portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demandClosing Share Payment.
Appears in 2 contracts
Samples: Merger Agreement (Vireo Growth Inc.), Merger Agreement (Vireo Growth Inc.)
Surrender and Payment. (a) At or promptly after (but in no event later than 2 Business Days following) the Effective Time, all Shares outstanding the Parent shall deposit, or shall cause to be deposited, with a paying agent selected by Parent (subject to the consent, not to be unreasonably withheld, of the Company) (the “Paying Agent”), for the benefit of the holders of (i) certificates that immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either evidenced shares of Company Class A Common Stock (i) each holder of a certificate formerly representing any Shares (each, a the “CertificateCertificates”) shall cease to have any rights as a stockholder of the Target Company; or and (ii) in the case uncertificated shares 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 Merger Class A Common Stock (the “Exchange AgentUncertificated Shares”).
(c) , for exchange in accordance with this Article III, cash in an amount equal to the aggregate amounts payable under Section 3.1(a)(i); provided that such amount shall be increased by any amount that shall become payable by the Paying Agent to the holders of Company Equity Awards pursuant to Parent’s election under the first sentence of Section 3.3(d). As promptly soon as reasonably practicable following after the date hereof Effective Time and in any event not later than five the fifth (55th) Business Days thereafterDay following the Effective Time, Holdings Paying Agent shall mail to each holder of Shares shares of Company Class A Common Stock at the Effective Time a letter of transmittal in form and substance reasonably satisfactory 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 parties (a “Letter of Transmittal”Paying Agent) and instructions for use in effecting the such exchange. Upon proper surrender of Certificates in a Certificate for exchange for and cancellation or transfer of Uncertificated Shares to the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a CertificatePaying Agent, together with a Letter letter of Transmittal transmittal, duly completed and validly executed in accordance with the instructions thereto, and any such other customary documents that Holdings as may reasonably require in connection therewithbe required pursuant to such instructions, deliver to the holder of such Certificate such holder’s portion of or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration as provided in Section 2.8(b) with respect to of the shares of Company Class A Common Stock formerly represented by any such Certificate and such Certificate so surrendered and the Certificate shares of Company Class A Common Stock formerly represented by any such Uncertificated Shares shall forthwith be cancelled. Until so surrendered, each outstanding Certificate .
(b) Each holder of shares of Company Class A Common Stock that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence have been converted into the right to receive the portion Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly Company Class A Common Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate as provided in this Agreement, at or Uncertificated Share shall represent after the respective time and subject Effective Time for all purposes only the right to the contingencies specified herein and thereinreceive such Merger Consideration.
(ec) If any portion of the Merger Consideration is to be delivered 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 delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Paying Agent any transfer or other Tax 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 reasonable satisfaction of Holdings the Paying Agent that such Tax has Taxes have been paid or is are not payable.
(fd) At and after the Effective Time, there shall be no further transfers on the stock transfer books of Company Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with, the procedures set forth in this Article III.
(e) Any portion of the Merger Consideration made available to the Paying Agent pursuant to (a) that remains unclaimed by the Target holders of shares of Company Stockholders ninety Class A Common Stock nine (909) days months after the Effective Time shall be returned paid, at the request of Parent, to Holdings, upon demandor as directed by Parent, and any such Target Company Stockholder holder who has not exchanged Certificates shares of Company Class A Common Stock for the Merger Consideration in accordance with this Section 2.10 3.4 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration, without any interest thereon. Notwithstanding anything to the foregoingcontrary contained herein, Holdings none of the Acquirer Parties, the Company, the Paying Agent or any other Person shall not be liable to any holder or former holder of Certificates shares of Company Class A Common Stock for any amounts paid amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (KCG Holdings, Inc.), Merger Agreement (Virtu Financial, Inc.)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior Parent shall appoint (subject to the Effective Time shall automatically Company’s prior approval not to be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (iunreasonably withheld or delayed) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; commercial bank 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 Merger trust company (the “Exchange Agent”).
(c) for the purpose of exchanging Certificates or Uncertificated Company Shares for the Merger Consideration. As promptly as practicable following of the date hereof Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of Company Shares, for exchange in accordance with this Section through the Exchange Agent, securities representing shares of Parent Common Stock issuable and in any event not later than five (5) Business Days thereafter, Holdings shall mail payable pursuant to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates Section 3.01 in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shalloutstanding Company Shares and, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposesif applicable, any cash and dividends or other distribution with respect to the Parent Common Stock to be issued or to be paid pursuant to the last sentence of Section 3.01(a) (together, the “Exchange Fund”). Promptly after the Effective Time (and in any event within three Business Days), Parent shall send, or shall cause the Exchange Agent to send, to evidence each holder of Company Shares 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 Certificates or transfer of the Uncertificated Company Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of Company Shares that have been converted into the right to receive the portion Merger Consideration shall be entitled to receive, upon delivery of the Ownership Evidence, the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Company Shares formerly represented by a Certificate or Uncertificated Company Share and any cash and dividends or other distributions with respect to the Parent Common Stock to be issued or to be paid pursuant to the last sentence of Section 3.01(a). Until so surrendered or transferred, as the case may be, each such Certificate as provided in this Agreement, at or Uncertificated Company Share shall represent after the respective time and subject Effective Time for all purposes only the right to the contingencies specified herein and thereinreceive such Merger Consideration.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Company Share is registered, it shall be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Company Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Company Share or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax tax has been paid or is not payable.
(fd) The stock transfer books of the Company shall be closed immediately upon the Effective Time and there shall be no further registration of transfers of Company Shares thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Company Shares are presented to Parent, the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged for the Merger Consideration and cash, dividends or other distributions to the extent provided for, and in accordance with the procedures set forth, in this Article 3.
(e) Any portion of the Merger Consideration Exchange Fund made available to the Exchange Agent pursuant to Section 3.02(a) that remains unclaimed by the Target holders of Company Stockholders ninety (90) days Shares six months after the Effective Time shall be returned delivered to Holdings, upon demandParent or otherwise on the instruction of Parent, and any such Target Company Stockholder holder who has not exchanged Certificates Company Shares for the Merger Consideration in accordance with this Section 2.10 3.01 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration, and any cash, dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates Company Shares for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by Target holders of Company Stockholders Shares 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 EntityAuthority) shall become, to the extent permitted by applicable Applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gf) Any portion Whenever a dividend or other distribution is declared by Parent in respect of Parent Common Stock, the Merger Consideration made available record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all shares of Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions in respect of such Parent Common Stock shall be paid to any holder of any unsurrendered or undelivered Ownership Evidence until such Ownership Evidence is provided to the Exchange Agent or Parent in accordance with this Article 3. Subject to the effect of Applicable Laws, following surrender or delivery, as applicable, of any such Ownership Evidence to the Exchange Agent or Parent in accordance with this Article 3, there shall be issued and/or paid to the holder of the Ownership Evidence representing whole shares of Parent Common Stock issued in exchange therefor, without interest, (A) at the time of such surrender or delivery, as the case may be, the dividends or other distributions with a record date at or after the Effective Time and a payment date on or prior to the date of issuance of such whole shares of Parent Common Stock and not previously paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to such whole shares of Parent Common Stock with a record date at or after the Effective Time on the Closing Date but with a payment date subsequent to surrender or delivery and not previously paid.
(g) Notwithstanding any other provision of this Agreement, no fractional shares of Parent Common Stock will be issued in respect of any Dissenting Company Shares (including upon exchange of any Company Exchangeable Shares) and any holder of Company Shares (or Company Exchangeable Shares) entitled to receive a fractional share of Parent Common Stock but for this Section 3.02(g) shall be returned entitled to Holdingsreceive in lieu thereof an amount in cash (without interest) determined by multiplying such fraction (rounded to the nearest one-hundredth of a share) by the average closing sale prices for a share of Parent Common Stock on the New York Stock Exchange, Inc. (the “NYSE”) Composite Transactions Tape (as reported by The Wall Street Journal (Northeast edition), or, if not reported thereby, as reported by any other authoritative source) for each of the ten consecutive trading days ending with the second complete trading day prior to the Closing Date (not counting the Closing Date).
(h) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article 3 such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of any Applicable Law, including federal, state, provincial, local or foreign Tax law. If the Exchange Agent, Parent or the Surviving Corporation, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which the Exchange Agent, Parent or the Surviving Corporation, as the case may be, made such deduction and withholding.
(i) In the event any Certificate shall have been lost, stolen or destroyed, upon demandthe making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond in the form customarily required by Parent as indemnity against any claim that may be made against it with respect to such Certificate, and the submission of such other documentation as Parent customarily requires for the replacement of lost, stolen or destroyed certificates, the Exchange Agent (or Parent pursuant to Section 3.02(e)) will deliver a certificate evidencing the ownership of such number of shares of Parent Common Stock and/or any cash, dividends and other distributions in respect thereof issuable and/or payable in exchange for such lost, stolen or destroyed Certificate pursuant to this Agreement.
(j) Notwithstanding anything herein to the contrary, Company Shares surrendered for exchange by an “affiliate” of the Company that will, after the Effective Time, be an “affiliate” of Parent, in each case as determined pursuant to Section 9.06, shall not be exchanged until Parent has received a written agreement from such Person as provided in Exhibit A.
Appears in 2 contracts
Samples: Merger Agreement (Stifel Financial Corp), Merger Agreement (Thomas Weisel Partners Group, Inc.)
Surrender and Payment. (a) At Immediately prior to the Effective Time, Parent shall deliver to a disbursing agent selected by Target after consultation with Parent, all Shares outstanding the costs of which will be paid by Parent (the “Agent”), the sum of One Hundred Two Million and No/100 Dollars ($102,000,000.00) less the amount of the Performance Deposit (as such term is defined in Section 3.06 of this Agreement) for purposes of paying in full the long-term indebtedness of Target and its Subsidiaries and the consideration shareholders of Target are entitled to receive as a result of the Merger.
(b) Except as provided in Section 3.01(d) above, at the Effective Time, each holder of a certificate which immediately prior to the Effective Time of the Merger represented issued and outstanding shares of Target Common Shares, shall automatically be cancelled and retired and entitled, upon surrender thereof to Agent, to receive payment therefor in cash in the amount set forth in Section 3.01(c). Promptly, but in no event more than ten (10) days after the Effective Time, Parent shall cease cause to existbe mailed to each person who was, andimmediately prior to the Effective Time, subject to Section 2.9, either (i) each a holder of a certificate formerly representing any Shares (eachrecord of issued and outstanding Target Common Shares, a “Certificate”) 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion certificates therefor and Target shall ensure that a list of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later holders of (i) the Closing Date or (ii) five (5) Business Days after receipt Target Common Shares as of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and delivered to Parent immediately after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) 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.
(ec) If any portion of the Merger Consideration payment for Target Common Shares is to be delivered to made in a Person name other than that in which the Person in whose name the Certificate (as defined below) therefor is surrendered Certificate is for exchange as registered, it shall be a condition to of such delivery payment that (i) such the Certificate shall so surrendered be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person person requesting such payment or delivery shall either pay to Holdings the Agent any transfer or other Tax taxes required as a result by reason of such the payment to a Person person other than the registered holder of such the Certificate surrendered or establish to the reasonable satisfaction of Holdings the Agent that such Tax tax has been paid or is not payable.
(fd) After the Effective Time there shall be no transfers on the stock transfer books of Target of Target Common Shares that were issued and outstanding immediately prior to the Effective Time, other than transfers of Target Common Shares by dissenting shareholders pursuant to the applicable provisions of the NRS.
(e) Any portion cash in the hands of the Merger Consideration that Agent delivered pursuant to Section 3.02(a) above which remains unclaimed by the Target Company Stockholders ninety following twelve (9012) days months after the Effective Time shall be returned to Holdings, upon demandParent, and thereafter the holders of Target Common Shares shall look solely to Parent and not to the Agent as to any rights afforded to such Target Company Stockholder who has not exchanged Certificates for holders pursuant to this Agreement, subject to applicable state laws.
(f) Agent, on behalf of each of Parent and the Merger Consideration in accordance with Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to 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 Agreement to any holder of Certificates Target Common Shares such amounts as may be required to be deducted and withheld with respect to the payment of taxes under the Internal Revenue Code of 1986, as amended (the “Code”), or any provisions of state, local or foreign tax law. To the extent that amounts are so withheld, such withheld amounts shall be treated for any amounts all purposes of this Agreement as having been paid to a public official the holders of Target Common Shares in respect to the consideration due to such holders pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretothis Agreement.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of If any Dissenting certificate representing Target Common Shares (a “Certificate”) shall be returned to Holdingshave been lost, stolen or destroyed, upon demandthe making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, unless otherwise waived by the Parent, the posting by such person of a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made against the Surviving Corporation with respect to such Certificate, Parent will issue in exchange for such lost, stolen or destroyed Certificate the amounts to be paid hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Platinum Energy Resources Inc), Merger Agreement (Platinum Energy Resources Inc)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding Parent shall appoint an agent reasonably acceptable to the Company (the “Paying Agent”) and enter into a paying agent agreement with the Paying Agent reasonably acceptable to the Company for the purpose of acting as agent in exchanging for the applicable portion of the Merger Consideration (A) certificates representing shares of Company Stock (the “Certificates”) or (B) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time (but in no event later than two (2) Business Days after the Effective Time), the Company shall send, or shall cause the Paying Agent to send, to each holder of record of shares of Company Stock (other than shares of Company Stock to be canceled pursuant to Section 2.02(a)(i) or Section 2.02(a)(ii) and shares of Company Stock converted pursuant to Section 2.02(a)(iii)) as of immediately following the Exchange and Redemption and immediately prior to the Effective Time a letter of transmittal (in a form that was reasonably acceptable to the Company prior to the Effective Time) and instructions (which shall automatically specify that the delivery shall be cancelled effected, and retired risk of loss and title shall cease to existpass, andonly upon proper delivery of the Certificates or receipt of an “agent’s message”, subject to Section 2.9as applicable) for use in the exchange of such shares of Company Stock for such holder’s applicable portion of the Merger Consideration; provided, either (i) each that if any holder of a certificate formerly representing any Shares record of shares of Company Stock or OpCo Units requests in writing to the Company (each, a “Certificate”) 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than at least five (5) Business Days thereafter, Holdings shall mail prior to each holder of Shares a the Closing) to receive such letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting advance of the surrender Effective Time, the Company shall send, or shall cause the Paying Agent to send, to each such requesting holder such letter of Certificates transmittal and instructions in exchange for advance of the applicable portion Effective Time.
(b) Each holder of Merger shares of Company Stock that have been converted into the right to receive the Per Share Consideration pursuant shall be entitled to Section 2.8(b). Holdings shallreceive, no later than the later of upon (i) surrender to the Closing Date or (ii) five (5) Business Days after receipt Paying Agent of a Certificate, together with a Letter of Transmittal duly properly completed and validly duly executed letter of transmittal in accordance the case of certificated shares of Company Stock, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Per Share Consideration in respect of each share of Company Stock represented by such Certificate or Uncertificated Share. Notwithstanding anything to the contrary herein, to the extent a properly completed and duly executed letter of transmittal completed by a holder of Company Stock as of immediately following the Exchange and Redemption and immediately prior to the Effective Time that has been converted into the right to receive the Per Share Consideration is received by the Paying Agent (together with the instructions theretosurrender of a Certificate, and any other customary documents that Holdings may reasonably require in connection therewith, deliver if applicable) at least one (1) Business Day prior to the holder Effective Time, Parent shall cause to be paid out of such Certificate such holder’s the Payment Fund (as defined below) the applicable portion of the Merger Consideration to which such holder of Company Stock is entitled as provided in Section 2.8(b) with respect to such Certificate so surrendered and promptly as reasonably practicable following the Certificate shall forthwith be cancelledoccurrence of the Effective Time. Until so surrenderedsurrendered or transferred, as the case may be, each outstanding such Certificate that or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such applicable portion of the Merger Consideration. At or prior to the Effective Time represented Shares Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, for the benefit of the holders of Company Stock entitled thereto, cash in an amount sufficient to pay the aggregate Merger Consideration (other than Dissenting excluding any amounts in respect of any Appraisal Shares) shall (such cash being hereinafter referred to as the “Payment Fund”). The Payment Fund shall, pending its disbursement to the holders of Company Stock entitled thereto, be deemed from and invested by the Paying Agent as directed by Parent or, after the Effective Time, the Surviving Corporation in (i) short-term direct obligations of the United States of America, (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) short-term commercial paper rated the highest quality by either Xxxxx’x Investors Service, Inc. or Standard and Poor’s Ratings Services, or (iv) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks reasonably acceptable to the Company; provided that no such investment or losses shall affect the amounts payable to such holders of Company Stock entitled thereto and Parent shall promptly replace or cause to be replaced any funds deposited with the Paying Agent that are lost through any investment so as to ensure that the Payment Fund is at all purposestimes maintained at a level sufficient for the Paying Agent to pay the aggregate unpaid Merger Consideration. Earnings from investments, subject to evidence the right immediately preceding proviso, shall be paid to receive and shall be the sole and exclusive property of Parent and the Surviving Corporation and no interest will be paid or accrued for the benefit of any holders of Company Stock entitled to a portion of the Merger Consideration Consideration. Except as provided in contemplated by Section 2.8(b). If after 2.03(e) hereof, the Effective Time, Payment Fund shall not be used for any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10other purpose.
(d) 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.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the a surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings the Paying Agent any transfer or other Tax Taxes or fees 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 Holdings the Paying Agent that such Tax has been paid or is not payable. Payment of the applicable portion of the Merger Consideration in respect of Uncertificated Shares will only be made to the Person in whose name such Uncertificated Shares are registered as of immediately following the Exchange and Redemption and immediately prior to the Effective Time.
(fd) From and after the Effective Time, there shall be no further registration of transfers of shares of Company Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent, they shall be canceled and exchanged for the portion of the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration Payment Fund that remains unclaimed by undistributed to the Target former holders of shares of Company Stockholders ninety Stock entitled thereto one (901) days year after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target former holder of shares of Company Stockholder Stock who has not exchanged Certificates shares of Company Stock for the Merger Per Share Consideration to which they are entitled in accordance with this Section 2.10 2.03 prior to that time shall thereafter look only to Holdings Parent and the Surviving Corporation for delivery payment of the applicable portion of the Merger Consideration, in respect of such shares of Company Stock without any interest thereon. Notwithstanding the foregoing, Holdings Parent and the Surviving Corporation shall not be liable to any holder of Certificates shares of Company Stock for any amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by Target holders of shares of Company Stockholders two 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 Entity) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Surrender and Payment. (a) At or prior to the Effective Time, all Shares outstanding immediately prior Parent shall make available to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either Exchange Agent (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder evidence of the Target Company; or Parent Class A Common Stock in book-entry form (and/or certificates representing the shares of Parent Class A Common Stock at Parent’s election) sufficient to deliver the aggregate Stock Consideration, (ii) immediately available funds equal to any dividends or distributions payable in accordance with Section 2.04(c), (iii) immediately available funds equal to the aggregate Cash Consideration, and (iv) cash in lieu of any fractional shares to be issued pursuant to Section 2.02 and paid pursuant to Section 2.04(f) in exchange for outstanding shares of Company Stock (other than Dissenting Shares) (such cash and book-entry or certificates for shares of Parent Class A Common Stock collectively being referred to as the “Exchange Fund”). Such cash funds may be invested by the Exchange Agent as directed by Parent; provided that (A) no such investment or losses thereon shall affect the Merger Consideration or other amounts payable hereunder, (B) if, for any reason (including if Dissenting Shares cease to be Dissenting Shares or if a dividend or distribution payable in accordance with Section 2.04(c) is paid), the cash and the evidence of book-entry or certificates for shares of Parent Class A Common Stock in the case Exchange Fund becomes insufficient to make the payments contemplated by this Article 2, then Parent shall promptly provide additional cash, evidence of uncertificated sharesbook-entry or certificates for shares of Parent Class A Common Stock, such holder shall cease as applicable to have any rights as a stockholder the Exchange Agent for the benefit of the Target former stockholders of the Company without any further actionsufficient to make the payments contemplated by this Article 2 and (C) such investments shall only be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as Parent directs.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as Promptly after the exchange agent in the Merger Effective Time (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event but not later than five three (53) Business Days thereafter), Holdings Parent shall mail send, or shall cause the Exchange Agent to send, to each holder of Shares shares of Company Stock who did not properly complete and timely submit and not revoke a Form of Election 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 affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange Agent) and shall be in such form and substance have such other or different provisions as Parent shall reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions designate for use in effecting the such exchange. Upon proper surrender of the Certificates for exchange (or affidavits of loss in exchange for lieu thereof) and cancellation or transfer of the applicable portion of Merger Consideration pursuant Uncertificated Shares to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a CertificateExchange Agent, together with a Letter such properly completed letter of Transmittal duly completed and validly executed in accordance with the instructions theretotransmittal, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate Certificates or Uncertificated Shares shall be entitled to receive in exchange therefor, as applicable, (i) a certificate or book-entry transfer representing the number of whole shares of Parent Class A Common Stock to which such holder’s portion holder of Company Stock shall have become entitled pursuant to the provisions of Article 2, (ii) a check representing the amount of the Merger aggregate Cash Consideration as provided (rounded up to the nearest whole cent) and any cash in lieu of fractional shares which such holder has the right to receive in respect of the Certificates or Uncertificated Shares surrendered pursuant to the provisions of this Article 2, and (iii) a check representing the amount of any dividends or distributions then payable pursuant to Section 2.8(b) with respect to such Certificate 2.04(c), and the Certificates or Uncertificated Shares so surrendered and the Certificate shall forthwith be cancelledcanceled. No interest will be paid or accrued on any cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates or Uncertificated Shares. Until so surrendered, each outstanding Certificate that prior to or Uncertificated Share shall represent after the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence purposes only the right to receive the portion Merger Consideration, together with any cash in lieu of the Merger Consideration fractional shares and any dividends or distributions as provided in contemplated by Section 2.8(b2.04(c). If The Parent, the Company and the Exchange Agent may agree on transfer procedures in addition to or different from the procedures set forth above in order to effect the transfer and conversion of Company Stock.
(c) No dividends or other distributions declared with respect to Parent Class A Common Stock shall be paid to the holder of any Certificate that has not been surrendered or Uncertificated Share that has not been transferred until the holder thereof shall surrender such Certificate or transfer such Uncertificated Share in accordance with this Article 2. After the surrender of a Certificate or transfer of an Uncertificated Share in accordance with this Article 2, the record holder thereof shall be entitled to receive (i) the amount of dividends or other distributions with a record date after the Effective TimeTime theretofore paid, without any interest thereon, with respect to the whole shares of Parent Class A Common Stock represented by such Certificate is presented or Uncertificated Share and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to Holdingssurrender and a payment date subsequent to surrender, it shall be cancelled and exchanged as provided in this Section 2.10with respect to shares of Parent Class A Common Stock represented by such Certificate or Uncertificated Share.
(d) 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 certificate representing shares of the Merger Parent Class A Common Stock is to be issued in, or any Cash Consideration is to be delivered 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 delivery 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, accompanied by all documents reasonably required to evidence and effect such transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(e) The shares of Parent Class A Common Stock delivered and cash paid in accordance with the terms of this Article 2 upon conversion of any shares of the Company Stock shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to such shares of the Company Stock. From and after the Effective Time, subject to Delaware Law in the case of Dissenting Shares, all holders of Certificates and Uncertificated Shares shall cease to have any rights as stockholders of the Company other than the right to receive the Merger Consideration into which the shares represented by such Certificates or Uncertificated Shares have been converted pursuant to this Agreement and any funds payable in accordance with Section 2.04(c) upon the surrender of such Certificate or Uncertificated Share in accordance with this Article 2. After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. 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 the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2 plus any funds payable in accordance with Section 2.04(c).
(f) Notwithstanding anything to the contrary contained in this Agreement, no certificates or scrip representing fractional shares of Parent Class A Common Stock shall be issued upon the surrender of Certificates for exchange or transfer of Uncertificated Shares, no dividend or distribution with respect to Parent Class A Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu of the issuance of any such fractional share, Parent shall pay to each former stockholder of the Company who otherwise would be entitled to receive such fractional share an amount in cash, without interest (rounded to the nearest cent) determined by multiplying (i) the Parent Trading Price by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of Parent Class A Common Stock to which such holder would otherwise be entitled to receive pursuant to Section 2.02.
(g) Any portion of the Merger Consideration Exchange Fund that remains unclaimed by the Target former holders of shares of Company Stockholders ninety (90) days after Stock as of the one year anniversary of the Effective Time shall be returned to Holdings, Parent upon demand, and any such Target . Any former stockholders of the Company Stockholder who has have not exchanged Certificates for the Merger Consideration in accordance theretofore complied with this Section 2.10 prior to that time Article 2 shall thereafter look only to Holdings Parent (subject to abandoned property, escheat or other similar Applicable Laws), as general creditors thereof, for delivery payment of the Merger Consideration, cash in lieu of any fractional shares and any unpaid dividends and distributions payable in accordance with Section 2.04(c), in respect of each share of Company Stock, as the case may be, such stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, Holdings none of Parent, Merger Subsidiary, the Company, the Exchange Agent or any other person shall not be liable to any former holder of Certificates shares of Company Stock for any amounts paid amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by Target Notwithstanding any other provision of this Agreement, any portion of the Merger Consideration or the cash to be paid in accordance with this Article 2 that remains undistributed to any former holder of Company Stockholders two years after the Effective Time (or such earlier dateStock, as of immediately prior to the date on which the Merger Consideration or such time when the amounts cash that would otherwise escheat to or become the property of any Governmental Entity) shall becomeAuthority, shall, to the extent permitted by applicable Applicable Law, become the property of Holdings the Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Carmike Cinemas Inc), Agreement and Plan of Merger (Amc Entertainment Holdings, Inc.)
Surrender and Payment. (a) At or promptly after the Effective Time, all Shares outstanding Parent shall deposit, or shall cause to be deposited, with a paying agent selected by Parent (subject to the consent, not to be unreasonably withheld, of the Company) (the “Paying Agent”), for the benefit of the holders of (i) certificates that immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either evidenced shares of Company Common Stock (i) each holder of a certificate formerly representing any Shares (each, a the “CertificateCertificates”) shall cease to have any rights as a stockholder of the Target Company; or and (ii) in the case uncertificated shares 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 Merger Common Stock (the “Exchange AgentUncertificated Shares”).
(c) , for exchange in accordance with this Article III, cash in an amount equal to the aggregate amounts payable under Section 3.1(a). As promptly soon as reasonably practicable following after the date hereof Effective Time and in any event not later than five the fifth (55th) Business Days thereafterDay following the Effective Time, Holdings Paying Agent shall mail to each holder of Shares shares of Company Common Stock at the Effective Time a letter of transmittal in form and substance reasonably satisfactory 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 parties (a “Letter of Transmittal”Paying Agent) and instructions for use in effecting the such exchange. Upon proper surrender of Certificates in a Certificate for exchange for and cancellation or transfer of Uncertificated Shares to the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a CertificatePaying Agent, together with a Letter letter of Transmittal transmittal, duly completed and validly executed in accordance with the instructions thereto, and any such other customary documents that Holdings as may reasonably require in connection therewithbe required pursuant to such instructions, deliver to the holder of such Certificate such holder’s portion of or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration as provided in Section 2.8(b) with respect to of the shares of Company Common Stock formerly represented by any such Certificate and such Certificate so surrendered and the Certificate shares of Company Common Stock formerly represented by any such Uncertificated Shares shall forthwith be cancelled. Until so surrendered, each outstanding Certificate .
(b) Each holder of shares of Company Common Stock that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence have been converted into the right to receive the portion Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly Company Common Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate as provided in this Agreement, at or Uncertificated Share shall represent after the respective time and subject Effective Time for all purposes only the right to the contingencies specified herein and thereinreceive such Merger Consideration.
(ec) If any portion of the Merger Consideration is to be delivered 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 delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Paying Agent any transfer or other Tax 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 reasonable satisfaction of Holdings the Paying Agent that such Tax has Taxes have been paid or is are not payable.
(fd) At and after the Effective Time, there shall be no further transfers on the stock transfer books of Company Capital Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with, the procedures set forth in this Article III.
(e) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.4(a) that remains unclaimed by the Target holders of shares of Company Stockholders ninety Common Stock six (906) days months after the Effective Time shall be returned paid, at the request of Parent, to Holdings, upon demandParent or as otherwise directed by Parent, and any such Target Company Stockholder holder who has not exchanged Certificates shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.10 3.4 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration, without any interest thereon. Notwithstanding anything to the foregoingcontrary contained herein, Holdings none of the Acquirer Parties, the Company, the Paying Agent or any other Person shall not be liable to any holder or former holder of Certificates shares of Company Common Stock for any amounts paid amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Virtu Financial, Inc.), Merger Agreement (Investment Technology Group, Inc.)
Surrender and Payment. (a) At Prior to the Effective Time, Parent shall appoint Acquiom Financial LLC as the payment agent (or such other nationally recognized payment agent agreed to between the parties) (the “Payment Agent”) to act as agent for the Company’s stockholders who shall become entitled to receive funds pursuant to this Agreement, including as agent for the purpose of surrendering, for the Per Share Merger Consideration, Certificates, and, as applicable for the Warrant Payments, Warrant Certificates; provided, however, that any references herein to “Certificates” or “Warrant Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock or Company Warrants, as applicable. At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Payment Agent an amount equal to the Aggregate Consideration (the “Payment Fund”) (less the portion of the Aggregate Consideration payable in respect of the Company RSU Awards and Company Stock Options, the amount of which shall be contributed by Parent to the Surviving Corporation and shall be payable by the Surviving Corporation through normal payroll processes, subject to applicable withholding in accordance with Section 2.09, not later than the first normal payroll date that occurs at least two (2) Business Days after the Closing Date). 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 Shares outstanding charges and expenses, including those of the Payment Agent, in connection with the conversion of shares of Company Common Stock into the right to receive the Per Share Merger Consideration in respect of each of such shares. Promptly after the Effective Time, and in any event no later than three (3) Business Days after the Effective Time, Parent shall send, or shall cause the Payment Agent to send, to each record holder of shares of Company Common Stock as of immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease whose shares were converted into the right to exist, and, subject receive the Per Share Merger Consideration pursuant to Section 2.92.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, either 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 2.10) to the Payment Agent for use in such exchange).
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Per Share Merger Consideration shall be entitled to receive the Per Share Merger Consideration (i) in respect of each holder share of Company Common Stock represented by a certificate formerly representing any Shares (eachCertificate, promptly, upon surrender to the Payment Agent of such Certificate, together with a “Certificate”) shall cease to have any rights duly completed and validly executed letter of transmittal and such other documents as a stockholder of may reasonably be requested by the Target Company; Payment Agent, or (ii) receipt of an “agent’s message” by the Payment Agent (or such other evidence, if any, of transfer as the Payment Agent may reasonably request) in the case of uncertificated sharesa book-entry transfer of shares of Company Common Stock, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdingsand, or a transfer agent appointed by Holdingsin each case, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory delivery to the parties (a “Letter Payment Agent of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any such other customary documents that Holdings as may reasonably require in connection therewith, deliver to be requested by the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledPayment Agent. Until so surrenderedsurrendered or transferred, each outstanding such Certificate that prior to shall represent after the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence purposes only the right to receive the portion of the Per Share Merger Consideration as provided in Section 2.8(b)with respect to each share of Company Common Stock represented by such Certificate. If after the Effective Time, any Certificate is presented to Holdings, it No interest shall be cancelled and exchanged as provided in this Section 2.10paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(d) 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.
(ec) If any portion of the Per Share Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings the Payment 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 Holdings the Payment Agent that such Tax has been paid or is not payable.
(d) Promptly following the Closing (and in any event within three (3) Business Days following the Closing), Parent and the Surviving Corporation will cause the Payment Agent to mail or otherwise provide to each Registered Holder (as of immediately prior to the Effective Time) of (x) a certificate or certificates that immediately prior to the Effective Time represented outstanding Company Warrants (the “Warrant Certificates”) or (y) uncertificated Company Warrants (the “Uncertificated Warrants”), (i) instructions for use in effecting the surrender of the Warrant Certificates or Uncertificated Warrants in exchange for the Warrant Payment payable in respect thereof pursuant to Section 2.07, and (ii) in the case of a holder of record of a Warrant Certificate, a customary form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Warrant Certificate (or affidavits of loss in lieu thereof)). Upon surrender of Warrant Certificates for cancellation to the Payment Agent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, the holders of such Warrant Certificates will be entitled to receive in exchange therefor an amount in cash equal to the Warrant Payment as set forth in Section 2.07, and the Warrant Certificates so surrendered will forthwith be cancelled. Upon receipt of an “agent’s message” by the Payment Agent (or such other evidence, if any, of transfer as the Payment Agent may reasonably request) in the case of Uncertificated Warrants, the holders of such Uncertificated Warrants will be entitled to receive in exchange therefor an amount in cash equal to the Warrant Payment set forth in Section 2.07, and such Uncertificated Warrant so surrendered will be cancelled. The Payment Agent will accept such Warrant Certificates and Uncertificated Warrants upon compliance with such reasonable terms and conditions as the Payment Agent may impose to cause an orderly exchange thereof in accordance with normal exchange practices. No interest will be paid or accrued for the benefit of holders of the Warrant Certificates and Uncertificated Warrants on the Warrant Payment payable upon the surrender of such Warrant Certificates or Uncertificated Warrants pursuant to this Section 2.04(d).
(e) All cash amounts properly paid upon the surrender of Certificates or Warrant Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Warrant Certificate 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, or transfers of Company Warrants on the warrant register, of the Surviving Corporation. If, after the Effective Time, Certificates or Warrant Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration with respect to each share of Company Common Stock represented by such Certificate, or, if applicable, Warrant Payment represented by such Warrant Certificate, in accordance with the procedures set forth in this Article 2.
(f) Any portion of the Merger Consideration Payment Fund that remains unclaimed by the Target holders of shares of Company Stockholders ninety Common Stock or Company Warrants, as applicable, twelve (9012) days months after the Effective Time shall be returned delivered to Holdingsthe Surviving Corporation, upon demand, and any such Target Company Stockholder holder who has not exchanged Certificates shares of Company Common Stock or Company Warrants (without prejudice to the terms of the Warrant Agreement) for the Per Share Merger Consideration in accordance with this Section 2.10 2.04 prior to that time shall thereafter look only to Holdings Parent or the Surviving Corporation for delivery payment of the Merger Considerationcash to which they are otherwise entitled in accordance with the procedures set forth in this Article 2, without interest. Notwithstanding None of Parent, the foregoing, Holdings Surviving Corporation or the Payment Agent shall not be liable to any holder of Certificates shares of Company Common Stock or Company Warrants for any cash amounts paid properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of Promptly following the Closing, the Surviving Corporation shall submit a written notice to the Escrow Agent, in a form reasonably acceptable to the Escrow Agent, certifying that the Merger Consideration made available has been consummated, in order for the Escrow Securities to be released to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demandSurviving Corporation for cancellation.
Appears in 2 contracts
Samples: Merger Agreement (AdTheorent Holding Company, Inc.), Merger Agreement (AdTheorent Holding Company, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled cancelled, retired and retired extinguished, as applicable, and shall cease to exist, and, subject to Section 2.91.8, either (i) each holder of a certificate or other instrument formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of Stockholder, other than to receive the Target Company; or (ii) in consideration for the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionShares hereunder.
(b) HoldingsAs promptly as practicable following the date hereof, or the Parties shall designate TMI Trust Company, a transfer agent appointed by HoldingsTexas trust company, shall to act as the exchange agent in the Merger (the “Exchange Agent”)) pursuant to a commercially reasonable exchange agent agreement entered into by Parent, Operator and the Exchange Agent. At or before the Effective Time, Parent and Operator shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the Stockholders, for exchange in accordance with this Section 1.9, through the Exchange Agent, cash in U.S. dollars in the respective amounts set forth in Section 1.14 and sufficient to pay the Merger Consideration as provided herein (such cash, and all interest and earnings thereon, being hereinafter referred to as the “Exchange Fund”) payable pursuant to Section 1.6 in exchange for outstanding Shares. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be paid pursuant to Section 1.6 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.
(c) As promptly as practicable following the date hereof and in any event not The Exchange Agent shall, no later than five (5) Business Days thereafterafter the Closing, Holdings shall mail subject to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificateall Certificates, together with a Letter Letters of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of respective Stockholders the Merger Consideration cash amounts as provided in Section 2.8(b) 1.6 with respect to each such Certificate so Stockholders’ surrendered Certificate, and the each such Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. In the event of a transfer of ownership of Shares that are not registered in the transfer records of HoldCo, the Merger Consideration may be issued to a transferee only if the Certificate representing such Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer including, if able to be provided, a FIRPTA Statement and by evidence that any applicable stock transfer Taxes have been paid. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b)1.6. If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.101.9.
(d) Each Target Company Common Stockholder and Series B 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 Certificates from the Escrow Accounts as provided in this Agreement and the Escrow Agreement, and on account of the applicable Post-Closing Adjustment, if any, 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 paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed endorsed, or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 Certificates or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration or other amounts that remains remain unclaimed by the Target Company Stockholders ninety (90) days one year after the Effective Time shall be returned to HoldingsBuyer Parties in their respective Pro Rata Portions, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration or other amounts in accordance with this Section 2.10 1.9 prior to that time shall thereafter look only to Holdings Buyer Parties in their respective Pro Rata Portions for delivery payment of the Merger ConsiderationConsideration or such other amounts; provided, that any such portion of the Merger Consideration payable from the Escrow Accounts 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 may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Buyer Parties 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 Target Company 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 Entity) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Holdings Buyer Parties in their respective Pro Rata Portions free and clear of any claims Claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsBuyer Parties in their respective Pro Rata Portions, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
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 2.92.8, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder shareholder 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) HoldingsPrior to the Effective Time, or a transfer Buyer and the SPAC shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) 15 Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Company Shareholder that holds Shares a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit E (a “Letter of Transmittal”) and ), and, if such Shares are represented by a stock certificate (each, a “Certificate”), instructions for use in effecting the surrender of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.13), in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.6(b). Holdings The Exchange Agent shall, no later than the later of of: (i) the Closing Date Date; or (ii) five (5) 15 Business Days after receipt of a Certificate, together with a Letter of Transmittal with respect to Shares duly completed and validly executed in accordance with the instructions theretothereto (and, and if applicable, a Certificate (or affidavits of loss in lieu thereof in accordance with Section 2.13) representing such Shares), together with any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewiththerewith (collectively, deliver the “Surrender Documentation”), issue to the holder of such Certificate Shares such holder’s portion of share as indicated in the Merger Consideration Spreadsheet of the Closing Merger Consideration (minus such holder’s share as provided indicated in Section 2.8(bsuch spreadsheet of the Holdback Shares) with respect to such Certificate so surrendered and Shares, and, if applicable, the Certificate representing such Shares shall forthwith be cancelled. The issuance of the Buyer Exchangeable Shares including the Holdback Shares may be in electronic book entry or DRS form without the issuance of physical stock certificates. With respect to each Company Shareholder, until such time as such Company Shareholder’s Buyer Exchangeable Shares shall be deliverable to such Company Shareholder pursuant to this Section 2.9(c), such Buyer Exchangeable Shares will be held in escrow by the Exchange Agent and treated as having been issued at the Closing to such Company Shareholder and outstanding, and such Company Shareholder (i) will be shown as the registered owner thereof on the books and records of Buyer and (ii) shall have all rights to receive on a current basis any dividends or other distributions made with respect to such Buyer Exchangeable Shares which dividends and distributions shall be issued to Exchange Agent, held by Exchange Agent for the benefit of such Company Shareholder, and included as part of such Buyer Exchangeable Shares, but in all cases subject to adjustment in accordance with Section 2.18. In the event that the Letter of Transmittal of a Company Shareholder indicates that such Company Shareholder is a Non-Accredited Seller, (A) the Exchange Agent shall promptly notify Buyer and the SPAC of such status, (B) Buyer and the SPAC, to the extent that neither has reasonable knowledge that such Company Shareholder is an accredited investor, shall promptly deliver or cause to be delivered to the Exchange Agent, for further distribution to such Non-Accredited Seller, the amount in cash payable to such Non-Accredited Seller in respect of the Closing Merger Consideration pursuant to Section 2.9(i), (C) the Exchange Agent shall distribute such cash to such Non-Accredited Seller in lieu of Buyer Exchangeable Shares and (D) the Buyer Exchangeable Shares previously made available to the Exchange Agent in respect of Merger Consideration deliverable to such Non-Accredited Seller shall be returned by the Exchange Agent to Buyer.
(d) The Exchange Agent shall, with respect to each holder of Shares, no later than the later of: (i) if such holder has previously delivered completed and validly executed Surrender Documentation, five (5) Business Days following the determination of the final number of Buyer Exchangeable Shares to be issued following the determination of the adjustment under Section 2.6(d); or (ii) if such holder has not yet delivered completed and validly executed Surrender Documentation, 15 Business Days after receipt of such completed and validly executed Surrender Documentation, issue to such holder its share as indicated in the Merger Consideration Spreadsheet of the Holdback Shares (and any Additional Shares, if applicable) with respect to such Shares. Until such time as the Holdback Shares shall be released to the Company Shareholders or permanently withheld pursuant to Section 2.18, the Holdback Shares will be held in escrow by the Exchange Agent and treated as having been issued at the Closing to the respective Company Shareholders and outstanding, and the respective Company Shareholders (i) will be shown as the registered owners thereof on the books and records of Buyer and (ii) shall have all rights to vote such Holdback Shares and receive on a current basis any dividends or other distributions made with respect to the Holdback Shares, which dividends and distributions shall be issued to Exchange Agent, held by Exchange Agent for the benefit of the Company Shareholders, and included as part of the Holdback Shares. Notwithstanding the foregoing, with respect to each Non-Accredited Seller, (A) Buyer and the SPAC shall deliver or cause to be delivered to the Exchange Agent, for further distribution to such Non-Accredited Seller in accordance with this Section 2.9(d), the amount in cash payable to such Non-Accredited Seller in respect of the Holdback Shares (and any Additional Shares, if applicable) pursuant to Section 2.9(i), (B) the Exchange Agent shall distribute such cash to such Non-Accredited Seller in lieu of Buyer Exchangeable Shares and (C) the Holdback Shares previously made available to the Exchange Agent in respect of such Non-Accredited Seller shall be returned by the Exchange Agent to Buyer.
(e) The Exchange Agent shall, with respect to each holder of Shares, no later than the later of: (i) if such holder has previously delivered completed and validly executed Surrender Documentation, the date upon which Buyer Exchangeable Shares become issuable to Company Shareholders as Earnout Consideration pursuant to Article 2 of the Investor Rights Agreement and the Exchange Agent receives such Buyer Exchangeable Shares in respect of such Earnout Consideration; or (ii) if such holder has not yet delivered completed and validly executed Surrender Documentation, 15 Business Days after receipt of such completed and validly executed Surrender Documentation, issue to such holder its share as indicated in the Merger Consideration Spreadsheet of such Earnout Consideration with respect to such Shares. With respect to each Company Shareholder, from and after the Exchange Agent’s receipt of Buyer Exchangeable Shares in respect of Earnout Consideration until such time as such Company Shareholder’s Buyer Exchangeable Shares shall be deliverable to such Company Shareholder pursuant to this Section 2.9(e), such Buyer Exchangeable Shares will be held in escrow by the Exchange Agent and treated as having been issued upon such Earnout Consideration becoming issuable to such Company Shareholder pursuant to the Investor Rights Agreement, and such Company Shareholder (i) will be shown as the registered owner thereof on the books and records of Buyer and (ii) shall have all rights to receive on a current basis any dividends or other distributions made with respect to such Buyer Exchangeable Shares which dividends and distributions shall be issued to Exchange Agent, held by Exchange Agent for the benefit of such Company Shareholder, and included as part of such Buyer Exchangeable Shares. The Exchange Agent shall, no later than the date upon which Buyer Exchangeable Shares become issuable to Vested Optionholders as Earnout Consideration pursuant to Article 2 of the Investor Rights Agreement and the Exchange Agent receives such Buyer Exchangeable Shares in respect of such Earnout Consideration, issue to each Vested Optionholder its share as indicated in the Merger Consideration Spreadsheet of such Earnout Consideration with respect to the Vested Exchanged Options held by such Vested Optionholder. Notwithstanding the foregoing, with respect to each Non-Accredited Seller, (A) Buyer and the SPAC shall deliver or cause to be delivered to the Exchange Agent, for further distribution to such Non-Accredited Seller in accordance with this Section 2.9(e), the amount in cash payable to such Non-Accredited Seller in respect of Earnout Consideration pursuant to Section 2.9(i) and (B) the Exchange Agent shall distribute such cash to such Non-Accredited Seller in lieu of Buyer Exchangeable Shares.
(f) Until so surrendered, each outstanding Share (and any Certificate that prior to the Effective Time represented Shares Shares) (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(bSections 2.6(b) and (d). If after the Effective Time, any Share (or any Certificate that prior to the Effective Time represented a Share) is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.10Section.
(d) 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 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 Holdings that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days Shareholders six months after the Effective Time date upon which such portion of the Merger Consideration became deliverable to the Company Shareholders shall be returned to HoldingsBuyer or the SPAC, as applicable, upon demand, and any such Target Company Stockholder Shareholder who has not exchanged Certificates the Surrender Documentation for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings Buyer or the SPAC, as applicable, for delivery issuance of such portion of the Merger Consideration. Notwithstanding the foregoing, Holdings neither Buyer nor the SPAC shall not be liable to any holder of Certificates Shares for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts portion of the Merger Consideration remaining unclaimed by Target Company Stockholders Shareholders two years after the Effective Time date upon which such portion of the Merger Consideration became deliverable to the Company Shareholders (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Buyer or the SPAC, as applicable, free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsBuyer or the SPAC, as applicable, upon demand.
(i) Notwithstanding anything herein to the contrary, in the event that a Seller is not an “accredited investor” (as defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended), the Merger Consideration deliverable to such Seller shall be solely in the form of cash (any Seller that receives cash in lieu of Buyer Exchangeable Shares pursuant to this Section 2.9(i), a “Non-Accredited Seller”). The amount of cash payable to a Non-Accredited Seller in respect of Merger Consideration pursuant to the foregoing sentence shall be equal to (i) with respect to the Closing Merger Consideration, the number of Buyer Exchangeable Shares that otherwise would have been deliverable to such Non-Accredited Seller in respect thereof (taking into account the Holdback Shares to be withheld from such Non-Accredited Seller in accordance with Section 2.6(d)) multiplied by $10.00, (ii) with respect to any Holdback Shares and Additional Shares that become deliverable pursuant to Section 2.18, the number of Holdback Shares and Additional Shares that otherwise would have been deliverable to such Non-Accredited Seller pursuant to Section 2.18 multiplied by $10.00, and (iii) with respect to Earnout Consideration, (A) the number of Buyer Exchangeable Shares that otherwise would have been deliverable to such Non-Accredited Seller in respect thereof multiplied by (B) the closing trading price for a SPAC Subordinate Voting Share on the principal securities exchange on which such security is traded on the date immediately preceding the date that such Earnout Consideration becomes deliverable to the Company Shareholders pursuant to the Investor Rights Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Glass House Brands Inc.), Merger Agreement (Glass House Brands Inc.)
Surrender and Payment. (a) At Prior to the Effective Time, Parent shall enter into an agreement with the Company’s transfer agent or another bank or trust company designated by Parent and reasonably acceptable to the Company to act as paying agent in connection with the Merger (the “Paying Agent”) to receive the Merger Consideration to which shareholders of the Company shall become entitled pursuant to this Article II. At or immediately after the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent cash in an amount sufficient to make all payments pursuant to this Article II owed in respect of Shares represented by Certificates or Book-Entry Shares issued and outstanding immediately prior to the Effective Time (such cash being hereinafter referred to as the “Payment Fund”). The Payment Fund shall automatically not be cancelled used for any purpose other than to fund payments due pursuant to this Article II, except as provided in this Agreement. The Surviving Corporation shall pay all charges and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder expenses of the Target Company; or (ii) Paying Agent in connection with the case exchange of uncertificated shares, such holder shall cease to have any rights as a stockholder of Shares for the Target Company without any further actionMerger Consideration contemplated by this Article II.
(b) HoldingsThe Surviving Corporation shall direct the Paying Agent to mail, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any no event not no later than five (5) Business Days thereafterfollowing the Closing, Holdings shall mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”), and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 2.1(a), (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person shall pass, only upon (x) adherence to the procedures set forth in the letter of transmittal and (y) in the case of Shares represented by Certificates, only upon proper delivery of such Certificates to the Paying Agent, and shall be in such form and substance have such other provisions as Parent and Company may reasonably satisfactory to the parties (a “Letter of Transmittal”agree on) and (ii) instructions for use in effecting the surrender of Certificates and Book-Entry Shares in exchange for the applicable portion of Merger Consideration payable with respect thereto pursuant to Section 2.8(b2.1(a), in each case in form and substance reasonably acceptable to the Company. Holdings shall, no later than Surrender of any Book-Entry Shares shall be effected in accordance with the later of (i) the Closing Date or (ii) five (5) Business Days after receipt Paying Agent’s customary procedures with respect to securities represented by book entry. Upon surrender of a CertificateCertificate or Book-Entry Share to the Paying Agent, together with a Letter such letter of Transmittal transmittal, duly completed and validly executed in accordance with the instructions thereto, and any such other customary documents that Holdings as may reasonably require in connection therewithbe required by the Paying Agent, deliver to the holder of such Certificate such holder’s portion of or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration as provided in Section 2.8(b) with respect to for each Share formerly represented by such Certificate or each Book-Entry Share so surrendered (subject to deduction for any required withholding Tax), and the Certificate Certificate, if any, so surrendered shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to No interest will be paid or accrued for the Effective Time represented benefit of holders of Certificates or Book-Entry Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of on the Merger Consideration as provided payable in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10respect of Certificates or Book-Entry Shares.
(d) 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.
(ec) If any portion payment of the Merger Consideration is to be delivered made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition to such delivery of payment that (i) the Person requesting such payment present proper evidence of transfer and, if applicable, the surrendered Certificate shall be properly endorsed or shall and otherwise be in proper form for transfertransfer or, in the case of Book-Entry Shares, the Person in whose name such Book-Entry Shares are registered shall have delivered to the Paying Agent instruments of transfer in such form as the Paying Agent may require in accordance with its customary procedures for the transfer for securities represented by book entry and (ii) the Person requesting such payment or delivery shall pay to Holdings have paid any transfer or and other Tax similar Taxes required as a result by reason of such the payment of the Merger Consideration to a Person other than the registered holder of such the Certificate or establish Book-Entry Share surrendered or shall have established to the reasonable satisfaction of Holdings the Surviving Corporation that such Tax either has been paid or is not payableapplicable.
(d) Until surrendered as contemplated by this Section 2.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 2.1(a), without any interest thereon.
(e) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. From and after the Effective Time, the holders of Certificates or Book-Entry Shares that evidenced ownership of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares other than the right to receive the applicable Merger Consideration, except as otherwise provided by applicable Law. Subject to the last sentence of Section 2.3(g), if, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer (or for any other reason) or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be cancelled and exchanged as provided in this Article II.
(f) Any portion The Paying Agent shall invest any cash included in the Payment Fund as directed by Parent. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the Merger Consideration that remains unclaimed payment obligations to be made in cash by the Target Company Stockholders ninety Paying Agent hereunder (90but subject to Section 2.6), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest and other income resulting from such investments shall be payable to, and shall be the property of, Parent.
(g) days At any time following the date that is one (1) year after the Effective Time Time, Parent shall be returned entitled to Holdings, upon demandrequire the Paying Agent to deliver to it any funds (including any interest received with respect thereto) which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares, and any thereafter such Target Company Stockholder who has not exchanged Certificates for holders shall be entitled to look to Parent and the Merger Consideration in accordance with this Section 2.10 prior Surviving Corporation (subject 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 a public official pursuant to applicable abandoned property, escheat or other similar Lawslaws) only as general unsecured creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificate or Book-Entry Shares. Any amounts remaining unclaimed by Target Company Stockholders two 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 Entity) Entity shall become, to the extent permitted by applicable Law, the property of Holdings the Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
(gh) Any portion If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance reasonably acceptable to Parent, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Paying Agent, Parent or the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will pay, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration made available to the Exchange Agent be paid in respect of any Dissenting the Shares shall be returned to Holdingsformerly represented by such Certificate, upon demandas contemplated by this Article II.
Appears in 2 contracts
Samples: Merger Agreement (MKS Instruments Inc), Merger Agreement (Electro Scientific Industries Inc)
Surrender and Payment. (a) At Two Business Days prior to the Effective TimeClosing, all Shares outstanding the Sellers’ Representative shall deliver a certificate executed by it which will certify the amount of the Per Oaktree Seller Merger Consideration, the amount of the Per Xxxxxx Unit Merger Consideration, the number of shares of Parent Common Stock to be delivered to each Seller at Closing, based on the number or percentage of Oaktree Units and Xxxxxx Units, as applicable, owned by such Seller immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a the “Merger Consideration Allocation Certificate”) ). The number of shares of Parent Common Stock to be delivered to the Sellers as set forth in such certificate, will be, in the aggregate, an amount that shall cease to have any rights as a stockholder not exceed the Aggregate Merger Consideration. After execution of the Target Company; or (ii) in Merger Consideration Allocation Certificate, there shall be no transfers on the case of uncertificated shares, such holder shall cease to have any rights as a stockholder books of the Target Company without Oceanbulk Holdcos of any further actionlimited liability company interests of either Oceanbulk Holdco that were outstanding immediately prior to such execution.
(b) HoldingsAt the Closing, or each Seller shall be entitled to receive (and shall receive from Parent) a transfer agent appointed by Holdings, shall act as the exchange agent in number of whole shares of Parent Common Stock set forth opposite such Seller’s name on the Merger (Consideration Allocation Certificate, together with any amounts to which such holder is entitled pursuant to Section 3.4 and Section 8.3. Parent shall cause such shares of Parent Common Stock to be issued in book-entry form at the “Exchange Agent”)Closing.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder All shares of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration Parent Common Stock delivered pursuant to Section 2.8(b). Holdings shall3.2(b) for exchange of Oaktree Units or Xxxxxx Units, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificateas applicable, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) terms hereof shall be deemed from and after the Effective Timeto have been delivered in full satisfaction of all rights pertaining to such Oaktree Units or Xxxxxx Units, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10applicable.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in After the future in respect of the Shares formerly represented by such Certificate as provided in this AgreementEffective Time, 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 there shall be a condition to such delivery that (i) such Certificate shall be properly endorsed no further registration of transfers of Oaktree Units 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 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 Holdings that such Tax has been paid or is not payableXxxxxx Units.
(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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Oaktree Capital Management Lp), Merger Agreement (Star Bulk Carriers Corp.)
Surrender and Payment. (a) At Closing, in addition to making the Effective Timepayments set forth in Section 7.09, all Buyer or MergerCo shall deposit, or shall cause to be deposited (x) with the Company, in a separate account established for the benefit of the holders of Shares outstanding and Company Warrants (the “Payment Fund”), by wire transfer of immediately prior available funds, an amount equal to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject estimate of the aggregate Share Consideration furnished pursuant to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder 2.11 and the estimate of the Target Company; or aggregate Warrant Consideration furnished pursuant to Section 2.11, less the Escrow Amount, and (iiy) with the Escrow Agent, in a separate account established pursuant to the Escrow Agreement for the benefit of the holders of Shares and Company Warrants (the “Escrow Fund”), by wire transfer of immediately available funds, the Escrow Amount. Neither the Payment Fund nor the Escrow Fund shall be used for any purpose except as expressly provided in this Agreement and in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionEscrow Agreement.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as Each holder of Shares that have been converted into the exchange agent in right to receive the Merger applicable Share Consideration will be entitled to receive upon surrender to the Surviving Corporation of certificates representing Shares (the “Exchange AgentShare Certificates”), together with a properly completed letter of transmittal, the Share Consideration for each Share represented by such Share Certificate, in the manner and at the times set forth in Sections 2.05(c) and 2.13. Until so surrendered, each such Share Certificate shall represent after the Effective Time for all purposes only the right to receive such Share Consideration.
(c) As promptly as practicable Payment of the applicable Share Consideration shall be effected in the following manner:
(i) If any holder of record of any Shares surrenders such holder’s Share Certificate(s), together with a properly completed letter of transmittal, to the Surviving Corporation at the Effective Time, or thereafter but prior to the determination of Final Working Capital, then such holder shall receive (A) payment of the applicable Initial Payment for such Shares, if surrendered at the Effective Time, at the Closing, or, if surrendered after the Effective Time, on the second business day after such surrender, and (B) the applicable Final Payment for such Shares in accordance with Section 2.13, in each case in immediately available funds by wire transfer to an account designated by such holder in the letter of transmittal.
(ii) If any holder of record of any Shares surrenders such holder’s Share Certificate(s), together with a properly completed letter of transmittal, to the Surviving Corporation after the determination of Final Working Capital, then such holder shall be entitled to receive payment of the Share Consideration for each such Share on the second business day after such surrender in immediately available funds by wire transfer to an account designated by such holder in the letter of transmittal. No later than two business days prior to the date hereof and in any event not later than five (5) Business Days thereafteron which the Closing is scheduled to occur, Holdings the Company shall mail send to each holder of Shares a letter of transmittal for use in exchanging such Shares for the applicable Share Consideration. The letter of transmittal shall be in form and substance reasonably satisfactory acceptable to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10Buyer.
(d) 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 applicable Share Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Share Certificate is registered, it shall be a condition to such delivery payment that (i) such the Share Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery shall pay to Holdings the Surviving Corporation any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Share Certificate or establish to the reasonable satisfaction of Holdings the Surviving Corporation that such Tax tax has been paid or is not payable.
(e) After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Share Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the applicable Share Consideration. For purposes of such exchange, the canceled Shares shall be deemed surrendered pursuant to Section 2.05(c) as of the date presented to the Surviving Corporation.
(f) Any portion of amount in the Merger Consideration Payment Fund and the Escrow Fund (and any interest or other income earned thereon) that remains unclaimed by the Target Stockholders and the holders of the Company Stockholders ninety Warrants after the later of (90i) days after the determination of the Final Working Capital and Final Closing Cash and (ii) a period of 12 months immediately following the Effective Time shall be returned to Holdings, upon demandthe Surviving Corporation, and any such Target Company Stockholder holder who has not exchanged Certificates its Shares for the Merger applicable Share Consideration in accordance with this Section 2.10 and any holder who has not exercised its Company Warrants for the applicable Warrant Consideration prior to that such time shall thereafter look only to Holdings the Surviving Corporation for delivery payment thereof without any interest thereon. Any portion of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to aggregate Share Consideration (and any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat interest or similar Laws. Any amounts remaining other income earned thereon) that remains unclaimed by Target Company the Stockholders two years after on the second anniversary of the date on which the Effective Time occurs (or such earlier date, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entitygovernmental authority) shall become, to the extent permitted by applicable Lawlaw, the property of Holdings the Surviving Corporation, free and clear of any claims or interest of any Person previously entitled thereto. Any portion of the aggregate Warrant Consideration that remains unclaimed by the holders of Company Warrants at 5:00 p.m., New York City time, on April 15, 2014 shall become, to the extent permitted by applicable law and the provisions of the Warrant Agreement, the property of the Surviving Corporation, free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 2 contracts
Samples: Merger Agreement (Mueller Water Products, Inc.), Merger Agreement (Walter Industries Inc /New/)
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 2.92.10, either (i) 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 Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions.
(b) HoldingsPrior to the Effective Time, or a transfer agent appointed by Holdings, Buyer shall appoint the Escrow Agent to act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) ten Business Days thereafter, Holdings unless previously delivered by the Company, the Exchange Agent shall mail to each holder of Shares Company Common Stock a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date (or if the Closing Date is not a Business Day, the first Business Day after the Closing Date) or (ii) five (5) two Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) 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 Target Company 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 AgreementAgreement 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.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days six months after the Effective Time shall be returned to HoldingsBuyer, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Buyer for delivery 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, Holdings Buyer 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 Target Company Stockholders two years 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings Buyer free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsBuyer, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Time, ECI shall appoint, 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 such other functions as are described in this Agreement. Immediately prior to the Effective Time, ECI will deposit the Net Aggregate Merger Consideration with the 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 receive Net Merger Consideration Per Share, upon surrender to the Paying Agent of a certificate or certificates representing such shares of Company Capital Stock or as contemplated by Section 2.08(d), together with a properly completed letter of transmittal, in the form attached hereto as Exhibit E, covering such shares of Company Capital Stock, will be entitled to receive the Net Merger Consideration Per Share payable in respect of such shares less such holder's Pro Rata Interest of the Escrow Amount, which shall be delivered to the 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 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 such certificates paid to it by wire transfer of immediately available funds or check on the Closing Date. After the Effective Time, each such certificate shall, until so surrendered, represent for all Shares purposes only the right to receive such Net Merger Consideration Per Share.
(c) After the Effective Time, there shall be no further registration of transfers of shares of Company Capital Stock outstanding immediately prior to the Effective Time. If, after the Effective Time, certificates representing shares of Company Capital Stock outstanding prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory are presented to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shallSurviving Corporation, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it they shall be cancelled and exchanged as provided for the applicable Net Merger Consideration Per Share, and in accordance with the procedures set forth in this Section 2.10Agreement.
(d) 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[Reserved.]
(e) If any portion of the Company Capital Stock certificates shall have been lost, stolen or destroyed, the Paying Agent shall deliver in exchange for such lost, stolen or destroyed certificates, upon the making of an affidavit of that fact by the holder thereof in the form set forth as Exhibit F, the applicable Net Merger Consideration is to be delivered to a Person other than Per Share; provided, however, that the Person Paying Agent or ECI may, in whose name the surrendered Certificate is registered, it shall be 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 made against the Paying Agent, ECI or the Company with respect to such delivery that (i) such Certificate shall be properly endorsed certificates alleged to have been lost, stolen 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 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 Holdings that such Tax has been paid or is not payabledestroyed.
(f) Any portion All amounts of cash paid upon the Merger Consideration that remains unclaimed by the Target surrender of certificates representing shares of 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 Capital Stock in accordance with this the terms hereof (including any cash or other distributions paid pursuant to Section 2.10 prior 2.06(c)) shall be deemed to that time 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 thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates shares of Company Capital Stock for any amounts paid Net Merger Consideration Per Share (or dividends or distributions with respect thereto) required to be delivered to a public official pursuant to any applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretolaw.
(gh) Any portion Each of ECI, the Paying Agent and the Surviving Corporation shall be entitled to deduct and withhold from the Net Merger Consideration made available 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 Exchange Agent 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 any Dissenting Shares shall be returned to Holdings, upon demandwhich such deduction and withholding was made.
Appears in 1 contract
Samples: Merger Agreement (Eci Telecom LTD/)
Surrender and Payment. (a) Promptly following the receipt of shareholder approval pursuant to Section 2.6, the Holder Representative shall cause the Payments Administrator to distribute (electronically or otherwise) to each Shareholder a letter of transmittal substantially in the form attached hereto as Exhibit B (a “Transmittal Document”) to be tendered in respect of the shares of Common Stock held by such holder and acknowledging the termination and cancellation of any Company Options held by such holder, in exchange for the 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 consideration specified in Section 2.7.1 hereof with respect thereto. 3063972 4
(b) All shares of Common Stock (other than treasury shares cancelled pursuant to Section 2.4.1 hereof and Dissenting Shares) and each Company Option shall be deemed at any time after the Effective Time to represent only the right to receive upon such delivery the portion of the Final Merger Consideration, if any, that is due to such holder hereunder.
(c) 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 at 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) hereof, the Company shall promptly pay such payment to such holder.
(d) Buyer, the Surviving Corporation, or the Payments Administrator shall deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as Buyer, the Surviving Corporation, or the Payments Administrator is required to deduct and withhold with respect to the making of such payment under the Code or under any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld by Buyer, the Surviving Corporation, or the Payments Administrator and 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 who otherwise would have received the payment in respect of which such deduction and withholding was made by Buyer, the Surviving Corporation, or the Payments Administrator.
(e) Payments of fair value in respect of Dissenting Shares, if any, pursuant to the GBCC shall be made, first, from that portion of the Final Merger Consideration allocable to such Dissenting Shares pursuant to Section 2.7.1 hereof and, second, by Buyer or the Surviving Corporation directly. After any such payments have been made, any such Dissenting Shares shall be cancelled.
(f) 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 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder stock transfer books of the Target Company; or (ii) in Company shall be closed and there shall be no further registration of transfers of any shares of capital stock thereafter on the case of uncertificated shares, such holder shall cease to have any rights as a stockholder records of the Target Company without any further actionCompany.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) 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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Costar Group Inc)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior Parent shall appoint an agent, reasonably satisfactory to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration certificates representing shares of Company Common Stock (the “Certificates”).
. Prior to the Effective Time, Parent shall deposit or cause to be deposited with the Exchange Agent in a separate fund established for the benefit of the holders of shares of Company Common Stock, cash sufficient to pay the aggregate Merger Consideration required to be paid for all of the Certificates at the Effective Time. Any cash deposited with the Exchange Agent shall not be used for any purpose other than as set forth in this Article 2 and shall be invested by the Exchange Agent as directed by Parent or the Surviving Corporation in: (cA) As promptly 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 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. The earnings and interest thereon shall be paid to Parent or as practicable following Parent directs. Promptly after the date hereof and in any event not later than five (5) Business Days thereafterEffective Time, Holdings Parent shall mail send, or shall cause the Exchange Agent to send, to each holder of Shares record of shares of Company Common Stock at the Effective Time, a letter of transmittal in form and substance reasonably satisfactory 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 parties (a “Letter of Transmittal”Exchange Agent) and instructions for use in effecting such exchange.
(b) Each holder of shares of Company Common Stock that have been converted into the surrender of Certificates in exchange for right to receive the applicable portion of Merger Consideration pursuant shall be entitled to Section 2.8(b). Holdings shallreceive, no later than upon surrender to the later of (i) the Closing Date or (ii) five (5) Business Days after receipt Exchange Agent of a Certificate, together with a Letter properly completed letter of Transmittal duly completed and validly executed in accordance with the instructions theretotransmittal, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to of the Company Common Stock represented by each such Certificate so surrendered and the Certificate shall forthwith be cancelledCertificate. Until so surrenderedsurrendered or transferred, as the case may be, each outstanding such Certificate that prior to shall represent after the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence purposes only the right to receive the portion of the such Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10Consideration.
(d) 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.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax 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 Holdings the Exchange Agent that such Tax tax has been paid or is not payable.
(fd) After the Effective Time, there shall be no further registration of transfers of shares of Company Common Stock. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.04(a) (and any interest or other income earned thereon) that remains unclaimed by the Target holders of shares of Company Stockholders ninety (90) days Common Stock six months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder holder who has not exchanged Certificates shares of Company Common Stock for the Merger Consideration in accordance with this Section 2.10 2.04 prior to that time shall thereafter look only to Holdings Parent for delivery 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, Holdings Parent shall not be liable to any holder of Certificates shares of Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by Target holders of shares of Company Stockholders 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 Entitygovernmental authority) shall become, to the extent permitted by applicable Lawlaw, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Morgan Stanley)
Surrender and Payment. (a) At the Effective Time, all Shares Shares, Options and Warrants outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of an Option or a Warrant shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions or Warrants.
(b) Holdings, or a transfer agent appointed by Holdings, Parent shall act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following Prior to receiving any portion of the date hereof and in any event not later than five (5) Business Days thereafterFinal Closing Merger Consideration, Holdings shall mail to each holder of any issued and outstanding Shares of Series 2 Preferred (other than Dissenting Shares) immediately prior to the Effective Time, whether or not represented by a Certificate, shall have delivered to Parent (i) a properly completed and duly executed letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit 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 Certificates in exchange for the applicable portion of the Final Closing Merger Consideration pursuant to Section 2.8(b). Holdings Parent shall, no later than the later of (i) the Closing Date or (ii) five three (53) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Parent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. No interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Series 2 Preferred (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Final Closing Merger Consideration payable pursuant to Section 2.8(b) as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to HoldingsParent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) 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 Final Closing Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings Parent 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 Holdings Parent that such Tax has been paid or is not payable.
(fe) Any portion Until surrendered as contemplated by this Section 2.11(e), each Share of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after Series 2 Preferred shall be deemed as of the Effective Time shall be returned to Holdingsrepresent only the right to receive, upon demand, surrender of such Certificate and any delivery of a properly completed and duly executed Letter of Transmittal together with such Target Company Stockholder who has not exchanged Certificates for other documents as may be reasonably requested pursuant to the Merger Consideration instructions thereto in accordance with this Section 2.10 prior to that time 2.11, the consideration into which such Share 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 a public official have been converted pursuant to applicable abandoned property, escheat or similar Laws. Section 2.8(b).
(f) Any amounts remaining unclaimed by Target Company Stockholders two 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 Entity) Authority pursuant to applicable Laws shall become, to the extent permitted by applicable LawLaws, the property of Holdings Parent, free and clear of any all Liens, claims or interest interests of any Person previously entitled thereto.
(g) Any portion . All cash paid upon conversion of Shares of Series 2 Preferred in accordance with the Merger Consideration made available to the Exchange Agent in respect terms of any Dissenting Shares this Article II shall be returned deemed to Holdings, upon demandhave been paid in full satisfaction of all rights pertaining to such Shares.
Appears in 1 contract
Samples: Merger Agreement (Realpage Inc)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately No later than five business days prior to the Effective Time Closing Date, HoldCo shall automatically be cancelled and retired and shall cease appoint a bank or trust company reasonably acceptable to exist, and, subject the Company to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”) for the purpose of exchanging (i) for the Common Stock Consideration (A) certificates representing shares of Company Common Stock (the “Common Certificates”) or (B) uncertificated shares of Company Common Stock (the “Uncertificated Common Shares”).
, and (cii) As for the Preferred Stock Consideration (A) certificates representing shares of Company Series C Preferred Stock (the “Preferred Certificates” and together with the Common Certificates, the “Certificates”) or (B) uncertificated shares of Company Series C Preferred Stock (the “Uncertificated Preferred” and together with the Uncertificated Common Shares, the “Uncertificated Shares”). At or prior to the Closing, the Parent Entities shall have deposited, or shall have caused to be deposited with or provided to, (1) the Depositary Bank, or a nominee for the Depositary Bank, a number of HoldCo Shares equal to the aggregate number of HoldCo ADSs to be issued as Common Stock Consideration and (2) the Exchange Agent, in escrow (x) for the benefit of the holders of Company Common Stock, irrevocable written instruction to cause the aggregate number of HoldCo ADSs to be issued as Common Stock Consideration, (y) for the benefit of the holders of Company Common Stock, receipts (or uncertificated book-entries, as applicable) representing such aggregate number of HoldCo ADSs, and (z) for the benefit of the holders of the Series C Preferred Stock, an amount in cash in U.S. dollars sufficient to pay the Preferred Stock Consideration. In addition, the Parent Entities shall deposit, or cause to be deposited, with the Exchange Agent, as necessary from time to time at or after the Closing any dividends or distributions payable pursuant to Section 2.04(f). All cash and HoldCo ADS, whether evidenced by receipts or book-entries, together with any dividends or distributions and cash in lieu of fractional shares in accordance with Section 2.05 deposited with or provided to the Exchange Agent by or on behalf of HoldCo, shall be referred to in this Agreement as the “Exchange Fund”. If for any reason the Exchange Fund is inadequate to pay the amounts to which holders of Company Stock shall be entitled under Section 2.03, the Parent Entities shall promptly as practicable following deposit, or cause to be deposited promptly, additional cash with the date hereof Exchange Agent sufficient to make all cash payments of the aggregate Preferred Stock Consideration and any cash payable in lieu of fractional HoldCo ADSs and additional HoldCo ADSs with the Exchange Agent (and additional HoldCo Shares with the Depositary Bank) sufficient to make all payments of the aggregate Common Stock Consideration, and Parent, HoldCo and the Surviving Corporation shall in any event be liable for payment thereof. Promptly after the Closing,
(I) the Parent Entities will instruct the Exchange Agent to pay the Merger Consideration out of the Exchange Fund in accordance with the terms of this Agreement (and, for the avoidance of doubt, the Exchange Funds shall not later be used for any purpose other than five the delivery of the Merger Consideration) and (5II) Business Days thereafterHoldCo shall send, Holdings or shall mail cause the Exchange Agent to send, to each holder of Shares shares of Company Stock as of immediately prior to the First 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 Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. Subject to Section 2.04(e), the Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to ADSs held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect thereto for the account of Persons entitled thereto. No later than ten (10) Business Days prior to the Closing Date, the Parent Entities shall enter into an agreement with the Exchange Agent, in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for Company, to effect the applicable portion terms of this Agreement (the “Exchange Agent Agreement”).
(b) At the First Effective Time, the stock transfer records of Merger Sub I shall record the issuance of all Merger Sub I Shares issuable in the First Merger as of the First Effective Time such that immediately following the First Effective Time such Merger Sub I Shares shall be deemed issued and outstanding Merger Sub I Shares. From and after the First Effective Time stock certificates previously evidencing ownership of shares of Company Common Stock converted in the First Merger into Merger Sub I Shares shall no longer evidence ownership of shares of Company Common Stock but shall evidence only ownership of the Merger Sub I Shares into which the Merger Sub I Shares previously represented by such stock certificates were converted in the First Merger. Each holder of shares of Company Common Stock that have been converted into the right to receive Merger Sub I Shares in connection with the First Merger, and which Merger Sub I Shares are in turn converted into the right to receive the Merger Consideration pursuant in connection with the Second Merger, shall be entitled to Section 2.8(b). Holdings shallreceive, no later than the later of upon (i) surrender to the Closing Date or (ii) five (5) Business Days after receipt Exchange Agent of a Certificate, together with a Letter properly completed letter of Transmittal duly completed and validly executed 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 Common Stock Consideration or Preferred Stock Consideration, as applicable, in respect of the Company Stock represented by such Certificate or Uncertificated Share. For the avoidance of doubt, pursuant to the foregoing provisions, each Person entitled to receive Merger Sub I Shares in the First Merger shall instead receive an equal number of HoldCo ADSs (or at such Person’s option, HoldCo Shares) to be issued following the Second Merger as the Common Stock Consideration. The HoldCo ADSs constituting part of such Common Stock Consideration, at HoldCo’s option, shall be in uncertificated book-entry form, unless a physical ADR is requested by Person or is otherwise required by applicable Law, in which case the Parent Entities shall cause the Exchange Agent to send such physical ADR to such Person promptly in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledExchange Agent Agreement. Until so surrenderedsurrendered or transferred, as the case may be, each outstanding such Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) or Uncertificated Share shall be deemed from and represent for all purposes after the Effective Time, for all purposes, to evidence Closing only the right to receive the portion of the such Merger Consideration and, in the case of Common Certificates and Uncertificated Common Shares, the right to receive any dividends or other distributions pursuant to Section 2.04(f), in each case, as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in contemplated by this Section 2.10Article 2.
(d) 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.
(ec) If any portion of the Merger Consideration is to be delivered 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 delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax similar 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fd) Any portion After the First Effective Time, there shall be no further registration of the Merger Consideration that remains unclaimed by the Target transfers of shares of Company Stockholders ninety (90) days Stock. If, after the Effective Time Closing, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be returned to Holdings, upon demand, canceled and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration payable in respect thereof provided for, and in accordance with the procedures set forth, in 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretoArticle 2.
(ge) Any portion of the Merger Consideration made available to the Depositary Bank or Exchange Agent in respect pursuant to Section 2.04(a) that remains unclaimed by the holders of any Dissenting Shares shares of Company Stock twelve months after the Closing shall be returned to Holdingsremitted to, or as designated by, HoldCo upon demand., and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this Section
Appears in 1 contract
Samples: Merger Agreement
Surrender and Payment. (a) At Prior to the mailing of the Proxy Statement (as defined in Section 4.4), Parent shall appoint an agent reasonably satisfactory to the Company (the “EXCHANGE AGENT”) for the purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, all (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares outstanding (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Shares. Promptly after the Effective Time, the Surviving Corporation will send, or will cause the Exchange Agent to send, to each holder of Shares immediately prior to the Effective Time a letter of transmittal for use in such exchange (which shall automatically specify that the delivery shall be cancelled effected, and retired risk of loss and title shall cease to existpass, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder only upon proper delivery of the Target Company; or (ii) in certificates representing Shares to the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionExchange Agent).
(b) HoldingsEach holder of Shares that have been converted into a right to receive Merger Consideration, upon surrender to the Exchange Agent of a certificate or certificates formerly representing such Shares, together with a transfer agent appointed by Holdingsproperly completed letter of transmittal covering such Shares, shall act will be entitled to receive the aggregate Merger Consideration payable in respect of such Shares. Until so surrendered and except as otherwise set forth in Section 2.3, each such certificate shall, after the exchange agent in Effective Time, represent for all purposes, only the right to receive such Merger (the “Exchange Agent”)Consideration. No interest will be paid or will accrue on such Merger Consideration.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings No certificate or scrip representing fractional shares of Parent Common Stock shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting be issued upon the surrender of Certificates certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the applicable portion Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of Merger Consideration pursuant to Section 2.8(b)a stockholder of Parent. Holdings shallNotwithstanding any other provision of this Agreement, no later than the later each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the Closing Date or aggregate number of Shares represented thereby), (ii) five (5) Business Days after receipt In-The-Money Options who would otherwise have been entitled to receive a fraction of a Certificateshare of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, together with if such holder would otherwise have been entitled to receive a Letter fraction of Transmittal duly completed and validly executed a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in accordance with lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the instructions theretoclosing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, and any other customary documents that Holdings may reasonably require in connection therewithif the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, deliver such exchange) on the Closing Date, rounded down to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10nearest whole cent.
(d) Each Target Company Stockholder No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall also be entitled paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any amounts that may such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the future in amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of the Shares formerly represented by such Certificate as provided in this AgreementParent Common Stock, without interest and (ii) at the respective time appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and subject a payment date subsequent to the contingencies specified herein and thereinsurrender that are payable with respect to such whole shares of Parent Common Stock.
(e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be delivered paid to a Person (as defined below) other than the Person in whose name the surrendered Certificate is registeredregistered holder of such certificate or certificates, it shall be a condition to such delivery payment that (i) such Certificate the certificate or certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate Shares or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax 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.
(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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Udate Com Inc)
Surrender and Payment. (a) At The Parties agree that American Stock Transfer and Trust Company shall act as exchange agent hereunder (the “Exchange Agent”) with respect to the Merger. Back to Contents
(b) Prior to the Effective Time, all the Company shall appoint the Exchange Agent to effect the issuance of the Merger Shares outstanding in exchange for the certificates that immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; represented outstanding PolyMedix Common Stock 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 Merger PolyMedix Preferred Stock (the “Stock Certificates”). On the Closing Date, the Company shall deliver to the Exchange Agent”).
, in trust for the benefit of holders of the Stock Certificates, a stock certificate (cissued in the name of the Exchange Agent or its nominee) As promptly as practicable following representing the date hereof aggregate Merger Shares issuable to such holders pursuant to Sections 3.1(b) and 3.5. Promptly after the Effective Time, but in any event not later than five (5) Business Days business days thereafter, Holdings the Exchange Agent shall mail send to each holder of Shares a Stock Certificate a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender exchange of the Stock Certificate(s) for stock certificate(s) representing the applicable Merger Shares issuable to such holder pursuant to Sections 3.1(b) and 3.5. Provision also shall be made for holders of the Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions and to deliver in person immediately after the Effective Time such letter of transmittal and Stock Certificates in exchange for the applicable portion of Merger Consideration pursuant Shares.
(c) After the Effective Time, the Stock Certificates shall represent the right, upon surrender thereof to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a CertificateExchange Agent, together with a Letter duly executed and properly completed letter of Transmittal duly completed and validly executed in accordance with the instructions transmittal relating thereto, to receive in exchange therefor the applicable Merger Shares subject to any required Tax withholding, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate Stock Certificates so surrendered and the Certificate shall forthwith be cancelledcanceled. Until so surrendered, each outstanding Stock Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive the portion applicable Merger Shares. Notwithstanding the foregoing, upon surrender of a Stock Certificate, the Merger Consideration holder thereof shall be entitled to any dividends or other distributions that are payable to the holders of record of Company Common Stock as provided in Section 2.8(b). If of a date on or after the Effective TimeTime and the time of such surrender; provided, any Certificate is presented to Holdingsthat, it no such Person shall be cancelled and exchanged as provided in this Section 2.10entitled to receive any interest on such dividends or other distributions.
(d) 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 shares of the Merger Consideration is Company Common Stock are 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 Tax required as a result of such payment issued to a Person other than the registered holder of the Stock Certificate surrendered in exchange therefore, it shall be a condition to such issuance or payment that the Stock Certificate surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such issuance shall pay to the Exchange Agent any transfer or other Taxes required as a result of such issuance to a Person other than the registered holder or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payableapplicable.
(fe) Any portion of the Merger Consideration Shares that remains unclaimed by the Target Company Stockholders ninety holders of PolyMedix Common Stock or PolyMedix Preferred Stock one (901) days year after the Effective Time shall be returned to Holdingsthe Company, upon demand, and any such Target Company Stockholder holder who has not exchanged such holder’s Stock Certificates for the Merger Consideration in accordance with this Section 2.10 3.3 prior to that time shall thereafter look only to Holdings for delivery the Company, as a general creditor thereof, to exchange such Stock Certificates or to pay amounts to which such holder is entitled pursuant to this Article III. If Stock Certificates are not surrendered prior to six (6) years after the Effective Time (or, in any particular case, prior to such earlier date on which any Merger Shares issuable or payable in respect of such Stock Certificates would otherwise escheat to or become the property of any governmental unit or agency), the Merger Shares issuable or payable in respect of such Stock Certificates shall, to the extent permitted by applicable law, become the property of the Merger ConsiderationCompany, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, Holdings none of the Parties hereto shall not be liable to any holder of Stock Certificates for any amounts paid amount paid, or Merger Shares delivered, to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed Back to Contents
(f) If any Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by Target the Person claiming such Stock Certificate to be lost, stolen or destroyed and, if required by the Company, the posting by such Person of a bond in such reasonable amount as the Company Stockholders two years after the Effective Time (or such earlier date, immediately prior may direct as indemnity against any claim that may be made against it with respect to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall becomeStock Certificate, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent will issue in exchange for such lost, stolen or destroyed Stock Certificate the Merger Shares in respect of any Dissenting Shares shall be returned thereof pursuant to Holdings, upon demandthis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Polymedix Inc)
Surrender and Payment. (a) At the Effective Time, all Shares Units outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) Units shall cease to have any rights as a stockholder member 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings the Company shall mail provide to each holder of Shares Units a letter of transmittal in the form mutually agreed to between the Parent and substance reasonably satisfactory to the parties Company (each, a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for receiving the applicable portion of Merger Consideration pursuant to Section 2.8(b)this Agreement. Holdings Parent shall, no later than the later of (i) the 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, and any other customary documents that Holdings the Parent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration applicable Unitholder or Warrantholder a cash amount as provided in Section 2.8(b2.08(a) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledor Section 2.09, as applicable. Until so surrenderedUnless otherwise provided herein, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) no interest shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, paid or shall accrue on any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10such cash.
(dc) Each Target Company Stockholder Unitholder and Warrantholder shall also be entitled to such Unitholder’s and Warrantholder’s Pro Rata Share of any amounts that may be become payable in the future in respect of such Unit and the Shares formerly represented by such Certificate cancelled Warrants from the Member Representative Expense Fund (if any), as provided in this Agreement, at and as specified or illustrated in the respective time and subject to the contingencies specified herein and thereinConsideration Spreadsheet.
(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 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 Holdings that such Tax has been paid or is not payable.
(fd) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time Closing shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates held by Parent for the Merger Consideration benefit of the applicable Unitholder or Warrantholder until the earlier of (i) payment being made in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery 2.11(b) and (ii) the one (1) year anniversary of the Merger ConsiderationClosing. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates Unitholder or Warrantholder for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
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 2.92.08(b), either (i) each holder Stockholder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder 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, On or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following prior to the date hereof and in any event not later than five (5) Business Days thereafterhereof, Holdings shall mail to each holder of Shares Company Common Stock has received a letter of transmittal transmittal, in form and substance reasonably satisfactory to Parent and the parties Stockholder Representative (a “Letter of Transmittal”) ), and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(a)(ii). Holdings , that includes, among other things, (a) a 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 (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 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) five two (52) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings Parent may reasonably require in connection therewith, (i) deliver a letter to Parent’s transfer agent directing it to deliver to the Stockholder Representative, on behalf of the holder of such Certificate Certificate, one (1) or more certificates representing, in the aggregate, the whole number of Parent Shares that such holder’s portion holder has the right to receive pursuant to Section 2.08(a)(ii) and (ii) deliver to the Stockholder Representative, on behalf of the Merger Consideration holder of such Certificate, a cash amount as provided in Section 2.8(b) 2.08(a)(ii), with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(a)(ii). If after the Effective Time, any Certificate is presented to HoldingsParent, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) 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 Agreementfrom the Earn-Out Consideration, 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 paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings Parent 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 Holdings Parent that such Tax has been paid or is not payable.
(f) Any portion of Notwithstanding anything to the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdingscontrary in this Agreement, 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 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 Target Company Stockholders two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
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 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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, Parent shall act as the exchange agent in the Merger (the “Exchange Agent”) for the purpose of exchanging certificates representing Company Shares (a “Certificate”) for the Closing Merger Consideration set forth in Section 2.1. The shares of Parent Common and cash to be received as consideration pursuant to Sections 2.1(a)(i)-(ii), 2.1(b)(i)(A)-(D), 2.1(b)(ii)(A)-(D) and 2.1(b)(iii)(A)-(D), together with cash in lieu of fractional shares as specified in Section 2.7, is referred to herein as the “Closing Merger Consideration.” Prior to the Effective Time, Parent shall provide to the Company, and the Company shall send to each holder of record of Company Shares as of the Effective Time, 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).
(cb) As promptly as practicable following Securityholders whose rights have been converted into rights to receive the date hereof and in any event not later than five (5) Business Days thereafterClosing Merger Consideration, Holdings shall mail upon surrender to each holder the Exchange Agent of Shares a Certificate or Certificates representing Company Shares, together with a properly completed letter of transmittal in form and substance reasonably satisfactory covering such Company Shares, will be entitled to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of receive (i) the Closing Date or Merger Consideration payable in respect of such Company Shares (less Escrow Consideration to be deposited with the Escrow Agent on such holders’ behalf pursuant to Section 2.3 and Article IX), and (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, and any dividends or other customary documents that Holdings may reasonably require in connection therewith, deliver distributions to the holder of which such Certificate such holder’s portion of the Merger Consideration as provided in holders are entitled under Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled2.4(f). Until so surrendered, each outstanding Certificate that prior has been converted into the right to receive the Effective Time represented Shares (other than Dissenting SharesClosing Merger Consideration pursuant to Section 2.1(d) 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 portion right to receive any dividends or other distributions payable pursuant to Section 2.4(f). For all Certificates and properly completed letters of transmittal covering such Company Shares delivered to Parent on or before the Closing Date, the Exchange Agent shall send, or cause Parent’s transfer agent to send, the Closing Merger Consideration payable to Securityholders pursuant to the foregoing (i) with respect to the Closing Cash Consideration, on the Closing Date and (ii) with respect to the certificates representing shares of Parent Common, within four (4) Business Days of the Closing Date. The Exchange Agent shall send the Closing Merger Consideration as provided in Section 2.8(b). If after payable to Securityholders with respect to any Certificates and properly completed letters of transmittal not received on or prior to the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10Closing Date within four (4) Business Days of receipt.
(d) 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.
(ec) If any portion of the Closing Merger Consideration is to be delivered paid to a Person (as defined in Section 4.3) other than the Person registered holder of Company Shares represented by the Certificate or Certificates surrendered in whose name the surrendered Certificate is registeredexchange therefor, it shall be a condition to such delivery payment that (i) such the Certificate or Certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) accompanied by all documents required to evidence and effect the transfer and that the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate Company Shares or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax tax has been paid or is not payable.
(fd) Any portion After the Effective Time, there shall be no further registration of the Merger Consideration that remains unclaimed by the Target transfers of Company Stockholders ninety (90) days Shares. If, after the Effective Time Time, Certificates are presented to the Surviving Corporation or Parent, they shall be returned to Holdings, upon demandcancelled and exchanged for the consideration provided for, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with the procedures set forth, in this Section 2.10 prior to that time Article II.
(e) Neither Parent, the Company nor the Surviving Corporation 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 Company Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by Target holders of Company Stockholders two Shares 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 Entitygovernmental entity) shall becomeshall, to the extent permitted by applicable Lawlaw, become the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gf) Any portion No dividends, interest or other distributions with respect to Parent Common constituting part of the Closing Merger Consideration made available shall be paid to the Exchange Agent holder of any unsurrendered Certificates representing Company Shares until such Certificates are surrendered as provided in this Section 2.4. Upon such surrender, there shall be paid, without interest, to the Person in whose name the Certificates representing shares of Parent Common into which such Company Shares were converted are registered, all dividends, interest and other distributions payable in respect of any Dissenting Shares shall be returned to Holdingssuch shares of Parent Common on a date subsequent to, upon demandand in respect of a record date after, the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Logicvision Inc)
Surrender and Payment. (a) At Prior to the Closing Date, Parent shall appoint a nationally recognized bank, trust company or other agent reasonably acceptable to the Company to act as the paying agent for the Merger (the “Paying Agent”) and enter into a paying agent agreement, reasonably acceptable to the Company, 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 Effective Time, all 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 Paying Agent to send, to each holder of Company Common Shares outstanding immediately at the Effective Time a letter of transmittal and instructions (which will be in a form reasonably acceptable to the Company and finalized prior to the Effective Time shall automatically and which will specify that the delivery will be cancelled effected, and retired risk of loss and shall cease to existtitle will pass, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder only upon proper delivery of the Target Company; Certificates or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder transfer of the Target Company without any further actionUncertificated Shares to the Paying Agent) for use in such exchange.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as Each holder of Company Common Shares that have been converted into the exchange agent in right to receive the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and Consideration in any event not later than five (5) Business Days thereafteraccordance with Section 2.02 will be entitled to receive, Holdings shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of upon (i) surrender to the Closing Date or (ii) five (5) Business Days after receipt Paying Agent of a Certificate, together with a Letter properly completed letter of Transmittal duly completed and validly executed in accordance with transmittal, or (ii) receipt of an “agent’s message” by the instructions theretoPaying Agent (or such other evidence, and any other customary documents that Holdings if any, of transfer as the Paying Agent may reasonably require request) in connection therewiththe case of a book-entry transfer of Uncertificated Shares, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such payable for each Company Common Share represented by a Certificate so surrendered and the Certificate shall forthwith be cancelledor for each Uncertificated Share (less any applicable withholding). Until so surrenderedsurrendered or transferred, as the case may be, each outstanding such Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed or Uncertificated Share will represent from and after the Effective Time, Time for all purposes, to evidence purposes only the right to receive the portion of Merger Consideration. No interest will be paid or will accrue on the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, payable upon surrender of any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10such Company Common Shares.
(d) 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.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall will be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Paying Agent any transfer or other Tax 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 reasonable satisfaction of Holdings the Paying Agent that such Tax has been paid or is not payable.
(fd) Any portion At the Effective Time, the share transfer books of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days will be closed, and there will be no further registration of transfers of Company Common Shares. If, after the Effective Time shall Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent, they will be returned to Holdings, upon demand, canceled and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoingArticle 2, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant including subject to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Law in the case of Dissenting Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretoShares.
(ge) Any portion of the Merger Consideration made available to the Exchange Paying Agent pursuant to Section 2.03(a) (and any interest or other 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 Dissenting 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 be returned not have been surrendered or Uncertificated Share shall not have been transferred prior to Holdingsthe date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Authority, upon demandthen any such Merger Consideration will, to the extent permitted by Applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
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 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not No later than five (5) Business Days thereafterprior to the Effective Time, Holdings Parent shall mail send to each record holder of Shares a letter shares of transmittal in form and substance reasonably satisfactory to Company Stock at the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shallEffective Time, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, 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 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 Cash Consideration in accordance with the instructions thereto, terms of Section 3.7. Until so surrendered and any other customary documents that Holdings may reasonably require in connection therewith, deliver subject to the holder terms set forth in Section 3.3, each such Company Certificate shall represent after the Effective Time for all purposes only the right to receive the shares of such Certificate such holder’s Parent Common Stock payable in respect thereof plus the right to receive a portion of the Merger Cash Consideration as provided in accordance with the terms of Section 2.8(b3.7.
(c) All consideration paid upon the surrender of Company Certificates in accordance with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Stock formerly represented by such Company Certificate, and from and after the Effective Time, for all purposes, to evidence 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 Merger Consideration as provided in Section 2.8(b)Surviving Corporation. If If, after the Effective Time, any Certificate is Company Certificates are presented to Holdingsthe Surviving Corporation, it they shall be 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 2.10Article 3.
(d) 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 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 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 Parent shall not be liable to any holder of Certificates shares of Company Stock for any amounts consideration paid to a public official Governmental Authority pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target holders of shares of Company Stockholders Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall automatically become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(ge) Any portion The 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 4(2) thereof and Rule 506 of Regulation D thereunder, and (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 the effect that such shares have been sold or otherwise transferred pursuant to exemptions from the registration requirements of the Merger Consideration made available 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 Rule 144 under the Securities Act (or a successor rule thereto). The shares of Parent Common Stock to be issued to the Exchange Agent in respect of any Dissenting Shares Company Stockholders pursuant to this Article 3 shall be returned 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 Holdingsstop-transfer instructions) consistent with the foregoing.
(f) No fractional shares of Parent Common Stock shall be issued in connection with the Merger, 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 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 demandsurrender of such holder’s Company Certificate(s), be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying (i) such fraction, by (ii) the Closing Share Value.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior Holding shall appoint the Exchange Agent as its agent for the purpose of exchanging certificates representing BD2 Stock for certificates representing the Holding Stock and Holding Warrants to be issued with respect thereto as the Merger Consideration. Prior to the Effective Time shall automatically be cancelled and retired and shall cease Time, Holding will send, or will cause the Exchange Agent to existsend, and, subject to Section 2.9, either (i) each holder of BD2 Stock at the Effective Time a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder letter of the Target Company; or (ii) transmittal for use in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionexchange.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each Each holder of Shares a letter of transmittal in form BD2 Stock that shall have been converted into the right to receive Holding Stock and substance reasonably satisfactory Holding Warrants, upon surrender to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt Exchange Agent of a Certificatecertificate or certificates formerly representing such XX0 Xxxxx, together with a Letter properly completed letter of Transmittal duly completed transmittal covering such certificates, will be entitled to receive the certificates representing the appropriate Holding Stock and validly executed Holding Warrants issuable in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder respect of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledBD2 Stock. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and such certificate shall, after the Effective Time, represent for all purposes, the appropriate number of shares of Holding Stock and Holding Warrants. In no event will a holder of BD2 Stock be entitled to evidence the right to receive the portion of interest on the Merger Consideration issuable in respect of such BD2 Stock.
(c) After the Effective Time, there shall be no further registration of transfers of BD2 Stock held prior to the Effective Time, except as provided in Section 2.8(b)may be required by the BCL. If If, after the Effective Time, any Certificate is certificates formerly representing BD2 Stock are presented to Holdingsthe Surviving Corporation or the Exchange Agent, it they shall be cancelled canceled and exchanged as for the consideration provided for, and in accordance with, the procedures set forth, in this Section 2.102.
(d) 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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Research Partners International Inc)
Surrender and Payment. (a) At 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 Effective TimeCompany (the “Election Form”), all Shares outstanding immediately 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 Effective Time Election Deadline and which shall automatically be cancelled specify, among other things, the Election Deadline and retired and shall cease the consequences of failing to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of meet the Target Company; or Election Deadline.
(ii) in Prior to the case of uncertificated sharesMailing Date, such holder Parent shall cease appoint an agent reasonably acceptable 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 Merger (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 be automatically surrendered for exchange upon the Second Company Merger Effective Time) (as well as cash in lieu of fractional shares of New Charter Company Stock as specified in Section 2.07) (A) certificates representing shares of Company Stock (the “Company Certificates”) and (B) uncertificated shares of Company Stock (the “Company Uncertificated Shares”), and (ii) exchanging for the Parent Merger Consideration and cash in 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 “Parent Certificates” and, together with the Company Certificates, the “Cer- tificates”) and (B) uncertificated shares of Parent Class A Common Stock (the “Parent Uncertificated Shares” and, together with the Company Uncertificated Shares, the “Uncertificated Shares”).
(ciii) As promptly The Company shall mail or cause to be mailed or delivered, as practicable applicable, not less than 20 Business Days prior to the anticipated Election Deadline (the “Mailing Date”) an Election Form to record holders of Company Stock as of the close of business on the tenth (10th) Business Day prior to the Mailing 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 (in the city in which the principal office of the Exchange Agent is located) on the date hereof that Parent and in any event not later than the Company shall agree is five (5) Business Days thereafter, Holdings prior to the expected Closing Date. The Company and Parent shall mail to each holder of Shares issue a letter of transmittal in form and substance press release reasonably satisfactory to each of them announcing the parties (a “Letter anticipated date of Transmittal”) the Election Deadline not more than 20 Business Days before, and instructions for use in effecting at least five Business Days prior to, the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b)Election Deadline. Holdings shall, no later than the later of (i) If the Closing Date or is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date (ii) five (5) which shall be the fifth Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that Day prior to the Effective Time represented Shares (other than Dissenting SharesClosing Date) and the Company and Parent shall be deemed from cooperate to promptly publicly announce such rescheduled Election Deadline and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10Closing.
(d) 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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
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 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five twenty (520) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Shares Company Common Stock a letter of transmittal in a form and substance reasonably satisfactory acceptable to the parties Parent (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of 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, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion the number of the Merger Consideration shares of Parent Common Stock as provided in Section 2.8(b2.08(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any consideration deliverable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) Each Target Company Stockholder shall also be entitled to any amounts consideration that may be payable 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 payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax required as a result of such payment delivery to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of Holdings 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 Target Company Stockholders ninety twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings 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, Holdings 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 shares of Parent Common Stock remaining unclaimed by Target Company Stockholders two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Item 9 Labs Corp.)
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 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of an Option shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions.
(b) HoldingsPrior to the Effective Time, or a transfer the Company shall appoint an exchange agent appointed by Holdings, shall (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five the Written Consent has been obtained pursuant to Section 5.04 (5) Business Days thereaftera), Holdings the Corporation shall mail to each holder of Shares Company Common Stock (including all holders of Company Class B Stock and Company Series A Convertible Preferred Stock) a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit B (a “Letter of Transmittal”) which shall contain the Stockholder Notice, as set forth in Section 5.04 (b) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b), such surrender and exchange to be administered by the Exchange Agent. Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a CertificateCertificate (or properly executed Affidavit of Loss of Certificate as set forth in Section 2.16), together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash and stock amount as provided in Section 2.8(b2.08(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, the Company shall mail to each 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 employee Optionholders, Parent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of an Option Termination Agreement duly completed and validly executed in accordance with the instructions thereto and any other customary documents that Parent may reasonably require in connection therewith, cause the Company’s current payroll provider, on behalf of the Company, to deliver such Optionholder the cash amount such Optionholder has the right to receive pursuant to Section 2.09(a). With respect to a non-employee Optionholder, the Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of an Option Termination Agreement duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Exchange Agent may reasonably require in connection therewith, pay to such Optionholder a cash amount as provided in Section 2.09(a) with respect to the In-Money Options in respect of which the 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 Cancellation Agreement.
(e) Each Target Company Stockholder and 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 the cancelled In-Money Options from the Indemnification Escrow Fund as provided in this AgreementAgreement 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 Optionholders on the Merger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety and Optionholders six (906) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder or Optionholder who has not exchanged Certificates or delivered Option Termination Agreements for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Indemnification Escrow Fund 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 or Optionholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings 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 Target Company Stockholders or Optionholders two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Fusion Telecommunications International Inc)
Surrender and Payment. (a) At the Effective Time, all Company Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either exist and each Stockholder (i) each and any other holder of a certificate formerly representing any Shares (each, a “Certificate”Company Shares) 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following after the date hereof and in any event not later than five (5) Business Days thereafterEffective Time, Holdings the Surviving Corporation shall mail send to each holder of Shares Company Holder a letter of transmittal in form and substance reasonably satisfactory to (the parties (a “Letter of Transmittal”) in a form approved by Parent and the Company and instructions for use in effecting the surrender of Certificates in exchange for Company Securities, including the certificates representing Company Shares, and receiving the applicable portion of Merger Total Share Consideration pursuant to as set forth in Section 2.8(b). Holdings 2.08.
(c) The Parent shall, no later than the later of (i) the Closing Date or (ii) five (5) fifteen Business Days after receipt from a Company Holder of a Certificatestock certificate or certificates representing such Stockholder’s Company Shares, as applicable, together with a completed Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Parent may reasonably require in connection therewith, deliver to such Company Holder, a stock certificate representing the holder of Closing Shares to which such Certificate Company Holder is entitled pursuant to Section 2.08, provided that if such holder’s portion of Company Holder holds Non-Accredited Shares, the Merger Consideration as provided Parent shall deliver the cash payment, if any, contemplated in Section 2.8(b2.08(b)(vii) with respect to such Certificate so surrendered Non-Accredited Shares.
(d) The Parent shall, no later than fifteen Business Days after the date that the conditions for the release of any Earnout Shares are satisfied in accordance with Section 5.11, deliver to each Company Holder (other than holders of Non-Accredited Shares), a stock certificate, or at the Company Holder’s discretion, a book entry, representing such Earnout Shares to which such Company Holder is entitled pursuant to Section 2.08 and Section 5.11, provided that such Company holder has previously delivered a stock certificate or certificates representing such Stockholder’s Company Shares, as applicable, together with a completed Letter of Transmittal any other customary documents that the Parent may reasonably require in connection therewith.
(e) The Holdback Amount shall be held by the Parent and released in accordance with Section 8.06.
(f) No holder of Company Securities shall be entitled to receive a fractional share of Parent Common Stock. In the event that any holder of Company Securities would otherwise be entitled to receive a fractional share of Parent Common Stock (after aggregating all shares and fractional shares of Parent Common Stock issuable to such holder), then such holder will receive an aggregate number of shares of Parent Common Stock rounded up or down to the nearest whole share (with 0.5 being rounded up).
(g) The Parent intends to issue the Merger Shares as provided in this Agreement pursuant to a “private placement” exemption or exemptions from registration under Section 4(2) of the Securities Act and/or Regulation D promulgated under the Securities Act and exemptions from qualification under applicable state securities laws. Parent and the Certificate Company shall forthwith comply with all applicable provisions of and rules under the Securities Act and applicable state securities laws in connection with the offering and issuance of the Merger Shares pursuant to this Agreement. The Merger Shares will be cancelled. Until so surrendered“restricted securities” under the Federal and state securities laws and cannot be offered or resold except pursuant to registration under the Securities Act or an available exemption from registration.
(h) Notwithstanding any provision of this Agreement to the contrary, each Company Shares that are outstanding Certificate that immediately prior to the Effective Time represented Shares and which are held by stockholders who have exercised and perfected appraisal rights for such shares in accordance with the DGCL (other than collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive Merger Shares. Such stockholders shall be entitled to receive payment of the appraised value of such shares held by them in accordance with the DGCL, unless and until such stockholders fail to perfect or effectively withdraw or otherwise lose their appraisal rights under the DGCL. All Dissenting Shares held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such shares under the DGCL shall thereupon be deemed from to have been converted into and after to have become exchangeable for, as of the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided payable with respect to such shares in accordance with Section 2.8(b). If after 2.08, without any interest thereon, upon the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as surrender in the manner provided in this Section 2.10.
(d) Each Target 2.09. The Company Stockholder shall also be entitled to any amounts that may be payable in give 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 Parent (i) prompt notice of any demands for appraisal received by the Company, withdrawals of such Certificate shall be properly endorsed or shall otherwise be in proper form for transferdemands, and any other related instruments served pursuant to the DGCL and received by the Company and (ii) the Person requesting such payment or delivery opportunity to direct all negotiations and proceedings with respect to demands for appraisal under the DGCL. The Company shall pay to Holdings any transfer or other Tax required as a result of such payment to a Person other than not, except with the registered holder of such Certificate or establish to the reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion prior written consent of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned Parent, make any payment with respect to Holdings, upon demand, and any demands for appraisal or offer to settle or settle 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretodemands.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (VNUE, Inc.)
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 2.92.7, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder shareholder 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings the Shareholders’ Representative shall mail to each holder of Shares Company Common Stock a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties (attached as Exhibit E ( a “Letter of Transmittal” and, together with the applicable Certificate, the “Transmittal Documents”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.8(b2.6(b). Holdings The Shareholders’ Representative shall, no later than the later of (i) the 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, and any other customary documents that Holdings the Shareholders’ Representative (including at the reasonable request of Parent) may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.6(b)(i) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Company Common Stock (other than Dissenting Shares described in Section 2.6(a) and Appraisal Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.6(b). If after the Effective Time, any Certificate is presented to Holdingsthe Shareholders’ Representative, it shall be cancelled and exchanged as provided in this Section 2.102.8. 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).
(dc) Each Target Company Stockholder 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 from (i) the Indemnity Holdback Amount or the Representative 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 respective time times and subject to the contingencies specified herein herein. The Shareholders’ Representative shall, subject to the prior receipt by the Shareholders’ Representative or Parent of a Certificate, together with a Letter of Transmittal duly completed and thereinvalidly 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 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 holder of such Certificate a cash amount as provided in Section 2.6(b)(ii) with respect to such Certificate. Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of Shareholders on the Merger Consideration.
(ed) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings the Shareholders’ Representative any transfer 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 Holdings the Shareholders’ Representative that such Tax has been paid or is not payable.
(fe) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety Shareholders twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder Shareholder who has not exchanged Certificates Transmittal Documents for the Merger Consideration in accordance with this Section 2.10 2.8 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that (i) any such portion of the 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, Holdings 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 Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (LIVE VENTURES Inc)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately Parent shall appoint XX Xxxxxx, N.A., as paying agent or such other paying agent with the Company’s prior to approval, which shall not be unreasonably withheld (the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either “Paying Agent”) for the purpose of exchanging for the Per Share Merger Consideration (i) each holder of a certificate formerly certificates representing any the Shares (each, a the “CertificateCertificates”) shall cease to have any rights as a stockholder of the Target Company; or (ii) uncertificated Shares (the “Uncertificated Shares”). Parent shall make available or cause to be made available to the Paying Agent amounts sufficient in the case of uncertificated shares, such holder shall cease aggregate to have any rights as a stockholder provide all funds necessary for the Paying Agent to make payments of the Target Company without Per Share Merger Consideration pursuant to Section 4.1(a) (such cash being hereinafter referred to as the “Exchange Fund”). If a Dissenting Shareholder effectively withdraws its demand for, or loses its, appraisal rights pursuant to Article 13 of the GBCC with respect to any further actionDissenting Shares, Parent shall make available or cause to be made available to the Paying 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, or lost its, appraisal rights pursuant to Article 13 of the GBCC and (ii) the Per Share Merger Consideration.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as Promptly after the exchange agent in the Merger Effective Time (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than within five (5) Business Days thereafter), Holdings the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of Shares (other than holders of Excluded Shares to the 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 and substance have such other provisions as Parent and the Company may reasonably satisfactory to the parties agree, and (a “Letter of Transmittal”ii) and instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(e)) or the Uncertificated Shares in exchange for the applicable portion of Per Share Merger Consideration pursuant to Section 2.8(b)Consideration. Holdings shall, no later than the later of Upon (iA) the Closing Date or (ii) five (5) Business Days after receipt surrender of a Certificate, together with a Letter Certificate (or affidavit of Transmittal duly completed and validly executed loss in lieu thereof as provided in Section 4.2(e)) to the Paying Agent in accordance with the instructions theretoterms of such letter of transmittal, and any duly executed, or (B) receipt of an “agent’s message” by the Paying Agent (or such other customary documents that Holdings evidence, if any, of transfer as the Paying Agent may reasonably require request) in connection therewiththe case of a book-entry transfer of Uncertificated Shares, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration or Uncertificated Shares shall be entitled to receive in exchange therefor a cash amount in immediately available funds (after giving effect to any required Tax withholdings as provided in Section 2.8(b4.2(g)) with respect equal to (x) the number of Shares represented by such Certificate (or affidavit of loss in lieu thereof as provided in Section 4.2(e)) or Uncertificated Shares multiplied by (y) the Per Share Merger Consideration, and the Certificate so surrendered and the Certificate Uncertificated Shares so transferred shall forthwith be cancelled. Until so surrenderedNo interest will be paid or accrued on any amount payable upon due surrender of the 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, each outstanding a check for any cash to be exchanged upon due surrender of the Certificate that prior may be issued to such transferee if the Certificate formerly representing such Shares is presented to the Effective Time represented Shares 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 Dissenting Sharesc) shall be deemed from From and after the Effective Time, for all purposes, to evidence there shall be no transfers on the right to receive the portion stock transfer books of the Merger Consideration as provided in Section 2.8(b)Company of the Shares that were outstanding immediately prior to the Effective Time. If If, after the Effective Time, any Certificate is presented to Holdingsthe Surviving Corporation, Parent or the Paying Agent for transfer, it shall be cancelled and exchanged as provided for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this Section 2.10Article IV.
(d) 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 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 Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the Target Company Stockholders ninety (90) days Shareholders for one year after the Effective Time shall be returned delivered to Holdings, upon demand, and any such Target Company Stockholder the Surviving Corporation. Any holder of Shares (other than Excluded Shares) who has not exchanged Certificates for the Merger Consideration in accordance theretofore complied with this Section 2.10 prior to that time Article IV shall thereafter look only to Holdings the Surviving Corporation for delivery payment of the Per Share Merger ConsiderationConsideration (after giving effect to any required Tax withholdings as provided in Section 4.2(g)) upon due surrender of its Certificates (or affidavits of loss in lieu thereof) or due transfer of its Uncertificated Shares, without any interest thereon. Notwithstanding the foregoing, Holdings none of the Surviving Corporation, Parent, the Paying Agent or any other Person shall not be liable to any former holder of Certificates Shares for any amounts paid amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond in customary amount and upon such customary and reasonable terms as may 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 Paying Agent will issue a check in 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 multiplied by the 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. Any amounts remaining unclaimed If any such Dissenting Shareholder shall have effectively withdrawn or lost such right at or following the Effective Time, each Dissenting Share held by Target 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 Company Stockholders two years 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 Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) amount thereof shall become, have been finally determined pursuant to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretoGBCC).
(g) Any portion Each of Parent, the Merger Consideration made available 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 Exchange Agent 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 Agreement as having been paid to the Person in respect of any Dissenting Shares shall be returned to Holdings, upon demandwhich the applicable deduction and withholding was made.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior Parent shall authorize one or more transfer agent(s) reasonably acceptable to the Effective Time shall automatically be cancelled and retired and shall cease Company to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger 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 Section 3.6(d), Exchange Agent will promptly distribute from the Exchange Fund in exchange 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 product of (A) the Per Share Consideration times (B) the number of shares of Company Common Stock represented by such certificate, (ii) with respect to the Company Notes which have not been converted, the applicable Per Note Consideration, (iii) with respect to Company Warrants, the applicable Per Warrant Consideration, and (iv) with respect to the Company Options, the applicable Per Option Consideration.
(c) As promptly as practicable following Promptly after the date hereof and Effective Time, but in any event not later than five (5) three Business Days thereafter, Holdings shall mail Parent will, or instruct Exchange Agent to, send to each holder of Shares Company Instruments a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender exchange of Certificates such Company 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 the city of New York. Provision also will be made for holders of Company Instruments to procure in person immediately after the Effective Time a letter of transmittal and instructions and to deliver in person immediately after the Effective Time such letter of transmittal and Company Instruments in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) 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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
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 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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, Holdings shall act as the exchange agent in the Merger (the “Exchange Agent”)) in the Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares Company Common Stock a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit C (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). If a 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 (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration Rollover Equity as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) 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 AgreementAgreement 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 delivery 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 or delivery shall pay to Holdings 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 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 three months 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 2.11 prior to that time shall thereafter look only to Holdings for delivery payment of the money Merger Consideration and to Holdings for the Rollover Equity; provided, that any such portion of the Merger ConsiderationConsideration 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
(h) For the avoidance of doubt, nothing in this Section 2.11 shall interfere with the Stockholders’ security interest in the shares of capital stock of the Surviving Corporation, as provided in Section 3 of the Promissory Note.
Appears in 1 contract
Samples: Merger Agreement (GigCapital2, Inc.)
Surrender and Payment. (a) At The parties agree that Fidelity Transfer Company shall act as transfer agent hereunder (the Effective Time, all Shares outstanding immediately prior "EXCHANGE AGENT") with respect to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 actionMerger.
(b) HoldingsPromptly after the Effective Time, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and but in any event not later than five (5) Business Days business days thereafter, Holdings the Exchange Agent shall mail send, to each holder of Shares a stock certificate or certificates that immediately prior to the Effective Time represented outstanding Merger Sub Common Stock, Isolagen Common Stock and Gemini Common Stock (the "STOCK CERTIFICATES") a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender exchange of the Stock Certificates for stock certificates representing the applicable merger consideration described in Section 3.1 above (the "MERGER CONSIDERATION"). Provision also shall be made for holders of the Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions and to deliver in person immediately after the Effective Time such letter of transmittal and Stock Certificates in exchange for the applicable portion of Merger Consideration pursuant Consideration.
(c) After the Effective Time, the Stock Certificates shall represent the right, upon surrender thereof to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a CertificateExchange Agent, together with a Letter duly executed and properly completed letter of Transmittal duly completed and validly executed in accordance with the instructions transmittal relating thereto, and any other customary documents that Holdings may reasonably require to receive in connection therewith, deliver to exchange therefor the holder of such Certificate such holder’s portion of the applicable Merger Consideration as provided in Section 2.8(b) with respect subject to such Certificate any required tax withholding, and the Stock Certificates so surrendered and the Certificate shall forthwith be cancelledcanceled. Until so surrendered, each outstanding Stock Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) 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 applicable Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10Consideration.
(d) 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 shares of the Merger Consideration is Company Common Stock are to be delivered issued to a Person (as defined below) other than the Person registered holder of the Stock Certificate(s) surrendered in whose name the surrendered Certificate is registeredexchange therefor, it shall be a condition to such delivery issuance or payment that (ithe Stock Certificate(s) such Certificate surrendered 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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.for
Appears in 1 contract
Samples: Merger Agreement (American Financial Holding Inc /De)
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 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder shareholder of the Target Company; or (ii) in Company other than the case of uncertificated shares, such holder shall cease right to have any rights as a stockholder receive the portion of the Target Company without any further actionMerger Consideration payable hereunder with respect to such Shares.
(b) Holdings, or a transfer agent appointed by Holdings, Parent shall act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafterhereof, Holdings Parent shall mail to each holder of Shares Company Common Stock a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings Parent shall, no later than the later of (i) the 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, and any other customary documents that Holdings Parent may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Initial Equity Consideration as provided in Section 2.8(b) 2.8 with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to HoldingsParent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) Each Target Company Stockholder 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 AgreementAgreement 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 delivery 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 or delivery shall pay to Holdings Parent 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 Holdings Parent 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 Shareholders three months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder Shareholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery 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, Holdings 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 Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent Parent in respect of any Dissenting Shares shall be returned to Holdings, retained by Parent upon demandthe completion of the statutory requirements for dissenting by the holders of such Dissenting Shares.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Timedate of mailing of the Proxy Statement, all Shares outstanding Parent shall appoint an agent (the “Exchange Agent”) reasonably acceptable to the Company for the purpose of exchanging certificates or book entries, as applicable, which immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder evidenced shares of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger Common Stock (the “Exchange AgentCertificates”).
(c) As promptly as practicable following , for the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail applicable Merger Consideration pursuant to each holder of Shares a letter of transmittal an exchange agent agreement in form and substance reasonably satisfactory to the parties Company. On or before the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, the Merger Consideration to be exchanged or paid in accordance with this Article II (such amount being hereinafter referred to as the “Exchange Fund”). The Surviving Entity shall, or shall cause the Exchange Agent to, send to each holder of record of shares of Company Common Stock immediately prior to the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.1, promptly after the Effective Time, (i) a “Letter letter of Transmittal”) and instructions transmittal for use in effecting such exchange (which shall specify that the delivery of the applicable Merger Consideration shall be effected, and risk of loss and title in respect of the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions to effect the surrender of the Certificates in exchange for the applicable Merger Consideration. Notwithstanding anything to the contrary contained in this Agreement, the Exchange Agent shall not disburse any part of the Exchange Fund until the Dissenters Determination Date (as defined in Section 2.6). Pending its disbursement in satisfaction of such obligations, the Exchange Fund shall be invested by the Exchange Agent as directed by Parent. Upon the date that is one (1) Business Day after the Dissenters Determination Date, the Exchange Agent shall disburse to Parent that portion of Merger Consideration the Exchange Fund (if any) attributable to Company Dissenting Shares. If a holder of Company Dissenting Shares effectively withdraws its demand for, or loses its rights to, payment of fair cash value pursuant to Section 2.8(b). Holdings shall1701.85 of the ORC with respect to any Company Dissenting Shares, no later than the later of (i) the Closing Date or such Company Common Stock shall cease to be Company Dissenting Shares and (ii) five Parent shall make available or cause to be made available to the Exchange Agent additional funds in an amount equal to the product of (5x) Business Days after receipt the number of Company Dissenting Shares for which the holder has withdrawn its demand for, or lost its rights to, payment of fair cash value pursuant to 1701.85 of the ORC and (y) the Merger Consideration. Nothing contained in this Section 2.2(a) and no investment losses resulting from investment of the funds deposited with the Exchange Agent shall diminish the rights of any holder of Company Common Stock to receive the Merger Consideration.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the applicable Merger Consideration upon surrender to the Exchange Agent of a CertificateCertificate or Certificates, together with a Letter properly completed letter of Transmittal duly completed transmittal covering such shares and validly executed in accordance with such other documents as the instructions thereto, and any other customary documents that Holdings Exchange Agent may reasonably require require, shall be entitled to receive the applicable Merger Consideration payable in connection therewith, deliver to the holder respect of such Certificate such holder’s portion shares of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so Company Common Stock. Certificates surrendered and the Certificate shall forthwith be cancelledcancelled as of the Effective Time. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after such Certificate, following the Effective Time, shall represent for all purposes, to evidence purposes only the right to receive the portion applicable Merger Consideration. No interest shall be paid or accrued for the benefit of holders of the Merger Consideration as provided in Certificates on cash amounts payable upon the surrender of such Certificates pursuant to this Section 2.8(b)2.2.
(c) After the Effective Time, there shall be no further registration of transfers of shares of Company Common Stock. If If, after the Effective Time, any Certificate formerly representing shares of Company Common Stock is presented to Holdingsthe Surviving Entity, it shall shall, subject to the terms and conditions of this Agreement, be cancelled and exchanged as for the applicable Merger Consideration provided for, and in accordance with the procedures set forth, in this Section 2.10Article II.
(d) Each Target None of Parent, Merger Sub, the Company Stockholder or any of their respective Subsidiaries or affiliates shall also be entitled liable to any amounts that may be payable in the future in respect holder of the Shares formerly represented by such Certificate as provided in this Agreementshares of Company Common Stock for any Merger Consideration delivered to a public official pursuant to any applicable abandoned property, at the respective time and subject to the contingencies specified herein and thereinescheat or similar Law.
(e) If any portion Each of the Exchange Agent, the Surviving Entity and Parent shall be entitled to deduct and withhold from the Merger Consideration otherwise payable to any holder of shares of Company Common Stock, such amounts as the Exchange Agent, the Surviving Entity or Parent is required to be delivered deduct and withhold with respect 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 Tax required as a result making of such payment to a Person under the Code or any provision of United States (“U.S.”) federal, state or local tax Law or any other than non-U.S. tax Law or any other applicable legal requirement. To the registered extent that amounts are so withheld by the Exchange Agent, the Surviving Entity or Parent, such amounts withheld from the Merger Consideration shall be treated for all purposes of this Agreement as having been received by the holder of the shares of Company Common Stock in respect of which such Certificate deduction and withholding was made by the Exchange Agent, the Surviving Entity or establish to the reasonable satisfaction of Holdings that such Tax has been paid or is not payableParent.
(f) Any portion of the Merger Consideration that (including any interest received with respect thereto) supplied to the Exchange Agent which remains unclaimed by the Target holders of shares of Company Stockholders ninety Common Stock twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder holder who has not exchanged his Certificates for the applicable Merger Consideration in accordance with this Section 2.10 2.2 prior to that the time of demand shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable Parent (subject to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or other similar Laws) as a general creditor thereof with respect to the payment of any Merger Consideration that may be payable upon surrender of any Certificates held by such holders, as determined pursuant to this Agreement, without any interest thereon. Any amounts remaining unclaimed by Target Company Stockholders two 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 to any Governmental Entity) Entity shall become, to the extent permitted by applicable Law, the property of Holdings Parent or its designee, free and clear of any all claims or interest of any Person person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
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 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of an Option shall cease to have any rights as a stockholder shareholder of the Target Company; Holdco or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions.
(b) HoldingsPrior to the Effective Time, or a transfer agent appointed by Holdings, each of Parent and Shareholder Representative shall appoint the Exchange Agent to act as the exchange agent in the Merger Merger. The Exchange Agent will be paid fifty percent (the “Exchange Agent”50%) by Parent and fifty percent by Holdco (with Holdco’s portion being treated as a Transaction Expense for purposes of this Agreement).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafterEffective Time, Holdings Parent shall cause the Exchange Agent to mail to each holder of Shares Shareholder a letter of transmittal in a form reasonably acceptable to Parent and substance reasonably satisfactory to the parties Holdco (a “Shareholder Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after Promptly upon receipt of a Certificate, together with a Shareholder Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings Parent or the Exchange Agent may reasonably require in connection therewith, deliver Parent shall cause the Exchange Agent to pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.08(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. No interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Holdco Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) As promptly as practicable following the Effective Time, Parent shall cause the Exchange Agent to mail to each Optionholder that is an employee of an FNC Entity letters of transmittal in a form reasonably acceptable to Parent and Holdco (an “Employee Optionholder Letter of Transmittal”) and instructions for completing, executing and returning such Employee Optionholder Letter of Transmittal. Promptly upon receipt of an Employee Optionholder Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Parent may reasonably require in connection therewith, Parent shall cause FNC’s current payroll provider, on behalf of Holdco, to pay to such Optionholder the cash amount such Optionholder has the right to receive pursuant to Section 2.09(a), with respect to the In-Money Options in respect of which the Employee Optionholder Letter of Transmittal was delivered. No interest shall be paid or shall accrue on any cash payable upon any In-Money Options.
(e) As promptly as practicable following the Effective Time, with respect to a non-employee Optionholder, Parent shall cause the Exchange Agent to mail to each Optionholder who is not an employee of an FNC Entity a letter of transmittal in a form reasonably acceptable to Parent and Holdco (each, a “Non-Employee Optionholder Letter of Transmittal”) and instructions for completing, executing and returning such Non-Employee Optionholder Letter of Transmittal. Promptly upon receipt of a Non-Employee Optionholder Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Parent or the Exchange Agent may reasonably require in connection therewith, Parent shall cause the Exchange Agent to pay to such Optionholder a cash amount as provided in Section 2.09(a) with respect to the In-Money Options in respect of which the Non-Employee Optionholder Letter of Transmittal was delivered. No interest shall be paid or shall accrue on any cash payable upon any In-Money Options.
(f) Each Target Company Stockholder Shareholder and 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 the cancelled In-Money Options from the Escrow Funds as provided in this AgreementAgreement and the Escrow Agreement and on account of the Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of Shareholders or Optionholders on the Merger Consideration.
(eg) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fh) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days Shareholders and Optionholders 12 months after the Effective Time shall be automatically returned to Holdings, upon demandParent by the Exchange Agent, and any such Target Company Stockholder Shareholder or Optionholder who has not exchanged Certificates or delivered Optionholder Transmittal Letters for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery 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 Shareholders or Optionholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings 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 Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(gi) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be automatically returned to Holdings, upon demandParent by the Exchange Agent.
Appears in 1 contract
Samples: Merger Agreement (Corelogic, Inc.)
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 2.92.11, either (i) each holder of a certificate formerly representing any Shares (each, a “Share Certificate”) shall cease to have any rights as a stockholder shareholder 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof receipt of the Requisite Company Vote and in any event not later than five (5) Business Days thereafterevent, Holdings prior to the Closing, the Exchange Agent shall mail to each holder of Shares a letter of transmittal in the form to be negotiated in good faith between Parent and substance reasonably satisfactory the Company and agreed to prior to the parties Closing (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Share Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.10(b). Holdings The Exchange Agent shall, no later than the later of (iA) the third Business Day following the Closing Date Date, or (iiB) five (5) Business Days after receipt of a CertificateShare Certificate or Lost Stock Affidavit, as the case may be, 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, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of the Shares represented by such Share Certificate such holder’s portion of or Lost Stock Affidavit, as the Merger Consideration case may be, a cash amount as provided in Section 2.8(b2.10(b) with respect to such Share Certificate so surrendered or delivery of Lost Stock Affidavit, as the case may be, and the any such Share Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Share Certificate. Until so surrendered, each outstanding Share Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.10(b). If If, after the Effective Time, any Share Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.13.
(dc) Each Target Company Stockholder Shareholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such a Share Certificate from the Post-Closing Adjustment Escrow Shares Funds, as provided for in this Agreement and the Escrow Agreement, at the respective time times and subject to the contingencies specified herein and therein. Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of Shareholders on the Merger Consideration.
(ed) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Share Certificate is registered, it shall be a condition to such delivery payment that (iA) such Share Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, with an accompanying Letter of Transmittal to the same effect, and (iiB) the Person requesting such payment or delivery shall pay to Holdings 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 Share Certificate or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fe) Any portion of the Closing Merger Consideration that remains unclaimed by the Target Company Stockholders ninety Securityholders twelve (9012) days months after the Effective Time shall be automatically returned to Holdings, upon demandParent, and any such Target Company Stockholder Securityholder who has not exchanged Share Certificates or delivered a Lost Stock Affidavit for the Merger Consideration in accordance with this Section 2.10 2.13 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger ConsiderationConsideration (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, Holdings Parent shall not be liable to any holder of Share Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(gf) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (ChaSerg Technology Acquisition Corp)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior the Company will appoint Acquiom Financial LLC, or another reputable paying agent to whom Buyer does not have a reasonable objection (the “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 this Article 2 and making payments to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 actionSellers.
(b) HoldingsEach Stockholder will be entitled to receive, after surrender to the Paying Agent of his, her or its Certificates, in each case, together with a transfer agent appointed by Holdingsproperly completed letter of transmittal, shall act as the exchange agent substantially in the Merger form of Exhibit D attached hereto (the “Exchange AgentTransmittal Documents”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to for each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of such Share represented by such Certificate: (i) the Per Share Closing Date or Consideration upon the Closing and (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed any Per Share/Option Additional Consideration payable in the manner and validly executed at the times set forth in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledthis Agreement. Until so surrendered, each outstanding such Certificate that prior to will represent after the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence purposes only the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged payment as provided in this Agreement. Each Optionholder shall be entitled to receive from the Paying Agent (i) the Per Option Closing Consideration upon the Closing and (ii) any Per Share/Option Additional Consideration payable in the manner and at the times set forth in 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 to each Stockholder Transmittal Documents for use in connection with the Contemplated Transactions. Subject to Section 2.102.04(b), Section 2.06 and this Section 2.07(c), the Company will direct (and the Surviving Corporation will cause) the Paying Agent to pay, immediately following the Effective Time (or as soon thereafter on the Closing Date as is practicable), to each Stockholder by wire transfer of immediately available funds the 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 the Paying Agent.
(d) Each Target Company Stockholder shall also After the Effective Time, there will be entitled to any amounts that may be payable in the future in respect no further registration of the Shares formerly represented by such Certificate as provided in this Agreement, at the respective time and subject transfers of Shares. All Certificates presented to the contingencies specified herein and thereinPaying Agent, as contemplated by this Section 2.07, will be canceled upon such presentment.
(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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Aggregate Closing Merger Consideration made available to the Exchange Paying Agent in respect of any Dissenting Shares shall pursuant to Section 2.07(a) that remains unclaimed by the Sellers one year after the Effective Time will be returned to Holdingsthe Company, upon demandand any Stockholder who has not exchanged its Shares for the applicable portion of the Aggregate Closing Merger Consideration prior to such time and any other Seller who has not otherwise received such Seller’s portion of the Aggregate Closing Merger Consideration, will thereafter look only to the Company for payment thereof without any interest thereon. Any Per Share/Option Additional Consideration made available to the 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) 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 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder shareholder of the Target Company; or (ii) in the case of uncertificated shares, such holder Company and shall cease to have any no rights as a stockholder shareholder of the Target Company without any further actionSurviving Corporation.
(b) HoldingsPrior to the Effective Time, or a transfer agent appointed by Holdings, Parent shall appoint an Exchange Agent reasonably acceptable to the Company to act as the exchange agent Exchange Agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and Promptly following, but in any no event not later more than five (5) Business Days thereafterafter the Option and Warrant Exercise Date (defined below), Holdings the Exchange Agent shall mail to each holder of Shares as of the Option and Warrant Exercise Date a letter of transmittal in substantially the form and substance reasonably satisfactory to attached hereto as Exhibit E (the parties (a “Letter of Transmittal”) and with instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration the consideration due to such holder pursuant to Section 2.8(b)2.06. Holdings Subject to the terms and conditions of this Agreement, the Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five ten (510) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver (A) pay to the holder of such Certificate such holder’s from the Exchange Fund a cash amount equal to the applicable cash portion of the Closing Merger Consideration as provided 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 2.8(b) 2.06 and with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Merger Consideration as provided in applicable consideration under Section 2.8(b)2.06. If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.09.
(d) 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 applicable consideration under Section 2.06 is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 Holdings 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 Merger Consideration Exchange Fund that remains unclaimed by the Target Company Stockholders ninety six (906) days months or more after the Effective Time (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 Holdingsthe Equityholder Representative, upon demand, and any such Target Company Stockholder Shareholder who has not exchanged Certificates for the Merger Consideration (other than Optionholders or Warrantholders who delivered Option Exercise Agreements or Warrant Exercise Agreement, as applicable) in accordance with this Section 2.10 2.09 prior to that time shall thereafter look only to Holdings the Exchange Agent and the Equityholder Representative for delivery payment of the Merger Considerationapplicable 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, Holdings 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 Target Company Stockholders any Shareholders two (2) 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 EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings 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.
(gh) Any portion of the Merger Consideration applicable consideration under Section 2.06 made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (OncoCyte Corp)
Surrender and Payment. (a) At the Effective Time, all Shares 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 2.92.8, either (i) each holder of a certificate formerly representing any Shares share of Company Capital Stock (each, a “Certificate”) shall cease to have any rights as a stockholder shareholder of the Target Company; or (ii) in Company other than as provided herein. At the case Closing, all Options outstanding immediately prior to the Closing shall automatically be cancelled and shall cease to exist, and each holder of uncertificated shares, such holder record of an Option shall cease to have any rights as a stockholder holder of the Target Company without any further actionOptions other than as provided herein.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof Effective Time, and in any event not later than five three (53) Business Days thereafter, Holdings the Paying Agent shall (A) mail to each holder of Shares Company Capital Stock that was converted pursuant to Section 2.6 into the right to receive applicable Merger Consideration a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates (or delivery of an affidavit and agreement of indemnification, if any, as specified in Section 2.19) in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.8(b2.6, 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). Holdings The Paying Agent shall, no later than the later of (i) the Business Day after the Closing Date or and (ii) five two (52) Business Days after receipt of a CertificateCertificate (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, and any other customary documents that Holdings may reasonably require the Paying Agent
(c) As promptly as practicable following the Agreement Date and in connection therewithany event not later than five (5) Business Days thereafter, deliver 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 holder of such Certificate such holder’s Company in exchange for the applicable portion of the Merger Consideration as provided pursuant to Section 2.7, together with (B) any written notice required to be delivered in Section 2.8(b) connection with respect the transactions contemplated hereby to such Certificate so surrendered holder pursuant to the Stock Option Plan under which such Option was granted and (C) written notice that such holder will be entitled to his or her applicable share of the Certificate shall forthwith be cancelled. Until so surrendered, each Merger Consideration for any Options that are outstanding Certificate that immediately prior to the Effective Time represented Shares 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 the later of (other than Dissenting Sharesi) shall be deemed from the Closing Date and (ii) two (2) Business Days after receipt of an Option Termination Agreement duly completed and validly executed in accordance with the Effective Timeinstructions thereto, for all purposescause the Company or the payroll service provider designated by the Company, as the case may be, to evidence deliver to such holder of Exchanged Options the cash amount such holder has the right to receive the portion of the Merger Consideration as provided in pursuant to Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.102.7.
(d) Each Target Former Holder of Company Stockholder Capital Stock or Exchanged Options shall also be entitled to any amounts that may be payable in the future in respect of his, her or its shares of Company Capital Stock or Exchanged Options from the Shares formerly represented by such Certificate Adjustment Escrow Fund and from the Indemnification Escrow Fund as provided in this Agreement and the Escrow Agreement, at the respective time times and subject to the contingencies terms and conditions 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. Unless otherwise provided herein, it no interest 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 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 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 accrued for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery benefit of holders of Company Capital Stock or Exchanged Options on the Merger Consideration. Notwithstanding the foregoing, Holdings 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 Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
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 2.92.10, either (i) each holder Stockholder of a certificate formerly representing any Shares (each, a “Certificate”) and each Optionholder shall cease to have any rights as a stockholder Stockholder of the Target Company; 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 actionOptionholder.
(b) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof Effective Time and in any event not later than five two (52) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Shares Company Stock a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five two (52) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver to the holder of such Certificate (i) one or more Certificates representing, in the aggregate, the whole number of Parent Shares that such holder’s portion of holder has the Merger Consideration right to receive pursuant to Section 2.08(b) and (ii) a cash amount as provided in Section 2.8(b) 2.08(b), with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11. Prior to the Effective Time, Parent shall provide to any Stockholder who is to receive in excess of $1,000,000 in connection with the transactions contemplated hereby, upon the written or email request of such Stockholder (or the Company on behalf of such Stockholder), a letter of transmittal, and any such Stockholder who shall deliver a duly completed letter of transmittal and the other items set forth in this Section 2.11(c) to the Exchange Agent on or prior to the Closing Date shall receive the amounts of Merger Consideration such Stockholder is entitled to receive hereunder on the Closing Date. At the election of any holder of Company Stock who is to receive in excess of $1,000,000 in connection with the transactions contemplated hereby, the Exchange Agent shall make any payment of Merger Consideration in excess of $1,000,000 by wire transfer.
(d) As promptly as practicable following the Effective Time and in any event not later than two (2) Business Days thereafter, the Company shall mail to each Optionholder and Warrantholder who has not exercised Options or Outstanding Warrants prior to Closing an option and warrant termination agreement (an “Optionholder Agreement”) and instructions for completing, executing and returning such Optionholder Agreement in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.09. The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) two (2) Business Days after receipt of an Optionholder Agreement duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Exchange Agent may reasonably require in connection therewith, deliver to such Optionholder or Warrantholder (i) one or more Certificates representing, in the aggregate, the whole number of Parent Shares that such Optionholder or Warrantholder has the right to receive pursuant to Section 2.09(a) and (ii) a cash amount as provided in Section 2.09(a) with respect to the In-Money Options or Outstanding Warrant in respect of which the Optionholder Agreement was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon delivery of any Optionholder Agreement.
(e) Each Target Company Stockholder Stockholder, Optionholder and Warrantholder 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 Agreementand the cancelled In-Money Options and Outstanding Warrants from the Contingent Payments, 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, Optionholders or Warrantholders on the Merger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety Stockholders, Optionholders and Warrantholders twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder Stockholder, Optionholder or Warrantholder who has not exchanged Certificates or delivered Letters of Transmittal or Optionholder Agreements for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Fund 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, Optionholders or Warrantholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings 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 Target Company Stockholders Stockholders, Optionholders or Warrantholders two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
(i) No fractional shares of Parent Shares shall be issued as Merger Consideration in the Merger, but in lieu thereof each Stockholder otherwise entitled to a fractional share of Parent Shares will be entitled to receive, from the Exchange Agent in accordance with the provisions of this Section 2.11(i), a cash payment equal to the number of such fractional shares of Parent Shares multiplied by the numerical average of the volume weighted average prices on Nasdaq (as reported by Bloomberg, L.P.) for one Parent Share for the forty five (45) consecutive trading days immediately preceding the trading day prior to the applicable payment date. Fractional share interests will not entitle the owner thereof to vote or to any other rights (including the right to receive dividends or other distributions of Parent.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior Parent shall appoint an agent reasonably acceptable to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (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 the Effective Time, Parent shall make available to the Exchange Agent the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. Such funds may be invested by the Exchange Agent as directed by Parent; provided that (ci) As no such investment or losses thereon shall affect the Merger Consideration payable hereunder, and, following any losses, Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the stockholders of the Company in the amount of any such losses and (ii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as practicable following Parent directs. Promptly after the date hereof and in any event Effective Time (but not later than five (5) three Business Days thereafter), Holdings Parent shall mail send, or shall cause the Exchange Agent to send, to each holder of Shares shares of Company Stock at the Effective Time a letter of transmittal in form and substance reasonably satisfactory 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 parties (a “Letter of Transmittal”Exchange Agent) and instructions for use in effecting such exchange.
(b) Each holder of shares of Company Stock that have been converted into the surrender of Certificates in exchange for right to receive the applicable portion of Merger Consideration pursuant shall be entitled to Section 2.8(b). Holdings shallreceive, no later than the later of upon (i) surrender to the Closing Date or (ii) five (5) Business Days after receipt Exchange Agent of a Certificate, together with a Letter properly completed letter of Transmittal duly completed and validly executed transmittal, in accordance with the instructions theretocase of Certificated Shares and/or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, and any other customary documents that Holdings if any, of transfer as the Exchange Agent may reasonably require request) in connection therewiththe case of a book-entry transfer of Uncertificated Shares, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration in respect of each share of Company Stock represented by a Certificate or Uncertificated Share; provided that until so surrendered or transferred, as provided in Section 2.8(b) with respect to the case may be, each such Certificate so surrendered and the Certificate or Uncertificated Share shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to represent after the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence purposes only the right to receive the portion of the such Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10Consideration.
(d) 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.
(ec) If any portion of the Merger Consideration is to be delivered 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 delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fd) Any portion The Merger Consideration paid in accordance with the terms of this Article 2 shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Stock (other than in respect of any dividends that have been declared and remained unpaid as of the Merger Consideration that remains unclaimed by Closing). After the Target Effective Time, there shall be no further registration of transfers of shares of Company Stockholders ninety (90) days Stock. If, after the Effective Time Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be returned to Holdings, upon demand, canceled and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration provided for, and in accordance with the procedures set forth, in 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretoArticle 2.
(ge) Any portion of the Merger Consideration made available to the Exchange Agent in respect pursuant to Section 2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of any Dissenting Shares shares of Company Stock six months after the Effective Time shall be returned to HoldingsParent, 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 a Governmental Authority pursuant to applicable abandoned property, escheat or similar laws.
Appears in 1 contract
Samples: Merger Agreement (Zep Inc.)
Surrender and Payment. (a) Except as set forth in the following sentence, the Company shall act as paying agent in effecting the exchange of Company Stock provided for herein. At the Effective TimeClosing, all Shares outstanding Buyer shall pay (or cause to be paid) by wire transfer of immediately available funds:
(i) to each Specified Stockholder on behalf of each holder of Company Stock, as set forth on Section 2.04(a)(i) of the Company Disclosure Schedule, who has duly executed and delivered to the Company, no later than two (2) Business Days prior to the Effective Time shall automatically be cancelled and retired and shall cease to existClosing Date, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares a letter of transmittal in form (which shall specify that the delivery shall be effected, and substance reasonably satisfactory risk of loss and title shall pass, only upon proper (x) delivery of the certificates representing shares of Company Stock (the “Certificates”) or (y) transfer of the uncertificated shares of Company Stock (the “Uncertificated Shares”) to the parties Company) in the form set forth on Exhibit F hereto (each, a “Letter of Transmittal”) and instructions for use the Certificates or Uncertificated Shares in effecting respect therefore, an amount in cash (in U.S. dollars) equal to the surrender amount of Certificates in exchange the aggregate Per Share Closing Date Consideration for the total shares of Company Stock represented thereby, in accordance with the instructions included in the Letter of Transmittal of the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or Specified Stockholder;
(ii) five to the Company, an amount in cash (5in U.S. dollars) Business Days after receipt 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 Certificateseparate segregated account, designated as such, for the sole purpose of disbursement to such holders pursuant to this Section 2.04;
(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 shall make the Letter of Transmittal available to all holders of Company Stock.
(b) After the Effective Time, upon surrender of such Certificates or Uncertificated Shares to the Company, together with a Letter of Transmittal Transmittal, duly completed and validly executed and delivered in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of or Uncertificated Shares shall be entitled to receive, from the Company, in exchange therefor, the aggregate Per Share Merger Consideration for such Company Stock in cash, as provided in set forth in, and subject to, the provisions of this Agreement, including Section 2.8(b) with respect to 2.02(a), and such Certificate so surrendered and the Certificate Certificates or Uncertificated Shares shall forthwith be cancelled. Until so surrenderedsurrendered as contemplated by, and in accordance with, this Section 2.04, each outstanding Certificate that prior to or Uncertificated Shares shall be deemed at any time after the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence represent only the right to receive the portion aggregate Per Share Merger Consideration, for such Company Stock in cash, as set forth in, and subject to, the provisions of the Merger Consideration as provided in this Agreement, including Section 2.8(b2.02(a). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) 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.
(ec) If any portion of the Per Share Merger Consideration is to be delivered 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 delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Company any transfer or other Tax 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 reasonable satisfaction of Holdings the Company that such Tax tax has been paid or is not payable.
(fd) After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration provided for, and in accordance with the procedures set forth in, this Agreement, including Section 2.02(a).
(e) Any portion of the Merger Aggregate Closing Consideration made available to the Company pursuant to Section 2.04(a) that remains unclaimed by the Target holders of shares of Company Stockholders ninety Stock six (906) days months after the Effective Time shall be returned to HoldingsBuyer, upon demand, and any such Target Company Stockholder holder who has not exchanged Certificates shares of Company Stock for the Per Share Merger Consideration in accordance with this Section 2.10 2.04 prior to that time shall thereafter look only to Holdings the Company for delivery 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, Holdings Buyer shall not be liable to any holder of Certificates shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretolaws.
(gf) Any portion Promptly after the date hereof, the Company shall furnish to each holder of a Company Stock Option and each holder of a Company 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 each Company Stock Option held by such holder at Closing and an amount in cash calculated in accordance with Section 2.09(b)(i) with respect to each Company Restricted Share held by such holder at Closing, in each case, through a special payroll of the Merger Consideration made available Company to be effected on the Exchange Agent in respect of any Dissenting Shares Closing Date. Buyer shall be returned responsible for ensuring that all payments to Holdingsbe 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 Surviving Corporation (as applicable) in accordance with this Agreement, upon demandand Buyer shall be liable to each holder of a Company Stock Option and each holder of a Company Restricted Share for any failure by the Surviving Corporation to discharge such payment obligations in accordance with the terms hereof.
Appears in 1 contract
Samples: Merger Agreement (Amc Entertainment Holdings, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares 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 2.91.7, either (i) each holder of a certificate formerly representing any Shares share of Company Stock (each, a “Company Stock Certificate”) shall cease to have any rights as a Company stockholder of the Target Company; or except (other than with respect to any (i) Company Stock to be cancelled and retired in accordance with Section 1.5(a), and (ii) in Dissenting Shares) for the case of uncertificated shares, such holder shall cease right to have any rights as a stockholder receive the applicable portion of the Target Merger Shares attributable to such Company without Stock (if any) pursuant to Section 1.5(b) and any further actiondistribution or dividend pursuant to Section 1.9.
(b) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five two (52) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Shares Series AB Preferred Stock a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Company Stock Certificates in exchange for the applicable portion of the Merger Consideration Shares attributable to such holder’s Series AB Preferred Stock pursuant to Section 2.8(b1.5(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five two (52) Business Days after receipt of a Company Stock Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver transfer to the holder of such Company Stock Certificate such holder’s the applicable portion of the Merger Consideration as provided in Shares attributable to such holder’s Series AB Preferred Stock pursuant to Section 2.8(b1.5(b) with respect to such Company Stock Certificate so surrendered and the Company Stock Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Company Stock Certificate that prior to the Effective Time represented Shares shares of Series AB Preferred Stock (other than any (i) Company Stock to be cancelled and retired in accordance with Section 1.5(a), and (ii) Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the applicable portion of the Merger Consideration as provided in Shares attributable to such Series AB Preferred Stock pursuant to Section 2.8(b)1.5(b) and any distribution or dividend pursuant to Section 1.9. If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.101.6.
(d) 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 Shares is to be delivered paid to a Person other than the Person in whose name the surrendered Company Stock Certificate is registered, it shall be a condition to such delivery payment that (i) such Company Stock Certificate shall be properly endorsed or shall otherwise be in proper form for transfer. For purposes of this Agreement, and “Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Entity (ii) the Person requesting such payment or delivery shall pay to Holdings any transfer as defined below), unincorporated organization, trust, association 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 Holdings that such Tax has been paid or is not payableentity.
(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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time Parent shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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) Holdingsserve as, or a transfer appoint, an agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following for the date hereof and purpose of exchanging certificates representing Shares for the Merger Consideration; provided that any such agent appointed by Parent shall be reasonably acceptable to the Company. Parent shall cause Merger Co. to make available to the Exchange Agent, immediately prior to the Effective Time, the Merger Consideration to be exchanged or paid in any event not later respect of the Shares, other than five (5) Business Days thereaftersuch portion of the Merger Consideration which constitutes the Escrow Amount. The Surviving Corporation shall send, Holdings or shall mail cause the Exchange Agent to send, to each holder of Shares (i) a letter of transmittal for use in such exchange (which shall be in form and substance reasonably satisfactory to the parties (a “Letter Company and shall specify that the delivery shall be effected, and risk of Transmittal”loss and title shall pass, only upon proper delivery of the certificates representing Shares to the Exchange Agent) and (ii) instructions for use in effecting to effect the surrender of the Certificates in exchange for the applicable portion Merger Consideration.
(b) Each holder of Shares that have been converted into a right to receive the Merger Consideration pursuant Consideration, upon surrender to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt Exchange Agent of a CertificateCertificate or Certificates representing such Shares, together with a Letter properly completed letter of Transmittal duly completed and validly executed transmittal covering such Shares, shall be entitled to receive the Merger Consideration payable in respect of such Shares (subject to deposit into the Escrow Fund in accordance with this Section 2.03(b) and Section 10.05(a) of the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver number of Parent Common Shares representing the portion of the Escrow Amount allocable to the such holder). The holder of such Certificate Certificate, upon its exchange for Parent Common Shares, shall also receive any dividends or other distributions to which such holder’s portion of the Merger Consideration as provided in holder is entitled pursuant to Section 2.8(b) with respect to such Certificate so 2.03(c). Certificates surrendered and the Certificate shall forthwith be cancelledcancelled following the Effective Time. Until so surrendered, each outstanding Certificate such Certificate, following the Effective Time, shall represent for all purposes only the right to receive such Merger Consideration. As soon as practicable after the Effective Time, and subject to and in accordance with the provisions of Section 10.05(a), Parent, on behalf of the Stockholders, shall cause to be delivered to the Escrow Agent Certificates representing 3,356,606 of the Parent Common Shares that constitute the Merger Consideration (the “Escrow Amount”) allocated among the Stockholders on a pro rata basis determined in accordance with each Stockholder’s ownership of Company Common Stock immediately prior to the Effective Time represented Shares (other than Dissenting Shares) on an as converted basis and without regard to the liquidation preference attributable to any shares of Series A Preferred Stock held by any such Stockholder, which Certificates shall be deemed registered in the name of the Escrow Agent as nominee for the holders of Certificates canceled pursuant to this Section 2.03(b). Such Parent Common Shares shall be beneficially owned by such holders, shall be held in escrow by the Escrow Agent and shall be applied solely to satisfy indemnification claims under Section 10.01(a) of this Agreement, all as provided in the Escrow Agreement. To the extent not applied for such purpose, such Parent Common Shares shall be released from the Escrow Fund, as and when provided in the Escrow Agreement.
(c) No dividends or other distributions declared or made after the Effective Time, for all purposes, Time with respect to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If Parent Common Shares with a record date after the Effective Time, any Certificate is presented to Holdings, it Time shall be cancelled and exchanged as provided paid to the holder of any unsurrendered Certificate with respect to the Parent Common Shares such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.102.03. Subject to applicable law, following surrender of any such Certificate, there shall be paid to the record holder of the Certificates representing whole Parent Common Shares issued in exchange therefor, without interest, at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole Parent Common Shares.
(d) 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 Certificate for Parent Common Shares is to be delivered to issued in a Person name other than that in which the Person Certificate surrendered in whose name the surrendered Certificate exchange therefor is registered, it shall be a condition to such delivery the issuance therefor that (i) such the Certificate or Certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery exchange shall pay have paid to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to the issuance of a Person Certificate for Parent Common Shares in any name other than that of the registered holder of such Certificate Shares, or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax tax has been paid or is not payable. For purposes of this Agreement, “Person” means a natural person, 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.
(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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Itc Deltacom Inc)
Surrender and Payment. (a) At 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 Effective TimeCompany (the “Election Form”), all Shares outstanding immediately 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 Effective Time Election Deadline and which shall automatically be cancelled specify, among other things, the Election Deadline and retired and shall cease the consequences of failing to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of meet the Target Company; or Election Deadline.
(ii) in Prior to the case of uncertificated sharesMailing Date, such holder Parent shall cease appoint an agent reasonably acceptable 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 Merger (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 be automatically surrendered for exchange upon the Second Company Merger Effective Time) (as well as cash in lieu of fractional shares of New Charter Company Stock as specified in Section 2.07) (A) certificates representing shares of Company Stock (the “Company Certificates”) and (B) uncertificated shares of Company Stock (the “Company Uncertificated Shares”), and (ii) exchanging for the Parent Merger Consideration and cash in 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 “Parent Certificates” and, together with the Company Certificates, 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”).
(ciii) As promptly The Company shall mail or cause to be mailed or delivered, as practicable applicable, not less than 20 Business Days prior to the anticipated Election Deadline (the “Mailing Date”) an Election Form to record holders of Company Stock as of the close of business on the tenth (10th) Business Day prior to the Mailing 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 (in the city in which the principal office of the Exchange Agent is located) on the date hereof that Parent and in any event not later than the Company shall agree is five (5) Business Days thereafter, Holdings prior to the expected Closing Date. The Company and Parent shall mail to each holder of Shares issue a letter of transmittal in form and substance press release reasonably satisfactory to each of them announcing the parties (a “Letter anticipated date of Transmittal”) the Election Deadline not more than 20 Business Days before, and instructions for use in effecting at least five Business Days prior to, the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b)Election Deadline. Holdings shall, no later than the later of (i) If the Closing Date or is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date (ii) five (5) which shall be the fifth Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that Day prior to the Effective Time represented Shares (other than Dissenting SharesClosing Date) and the Company and Parent shall be deemed from cooperate to promptly publicly announce such rescheduled Election Deadline and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10Closing.
(d) 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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Charter Communications, Inc. /Mo/)
Surrender and Payment. (ai) At the Effective Time, all Shares outstanding immediately prior to before the Effective Time shall automatically be cancelled and retired and shall cease to exist, but the rights of the Shareholders to receive the Closing Merger Consideration and Earnout shall continue, and, subject to Section 2.91.8(f), either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or .
(ii) in the case of uncertificated shares, such holder Buyer 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 serve as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(ciii) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail The Representative will send to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Closing Merger Consideration pursuant Consideration, such communication to Section 2.8(b)be sent via email or to the holder’s last known address on record with the Company. Holdings Buyer shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days business days after receipt of a Certificate, together with a Letter letter of Transmittal transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings Buyer may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) cash amount set forth on the Funds Flow Memo with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. If the Buyer determines that there are any defects in the Certificate or any other documentation that may be required from a Shareholder prior to payment, then Buyer shall notify the Shareholder, within five (5) business days of receipt of the Certificate, of any issues and provide instruction on how to correct such defect(s). Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to before the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Closing Merger Consideration as provided in Section 2.8(b1.8(e). If after the Effective Time, any Certificate is presented to HoldingsBuyer, it shall be cancelled and exchanged as provided in this Section 2.101.8(g).
(div) Each Target Company Stockholder 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 from the Escrow Funds, the Contingency Escrow, or the Earnout, as provided in this Agreement, the Company’s Articles of Incorporation, as amended, and, where applicable, the Escrow Agreement or in respect of any adjustment in accordance with Section 1.6, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of Shareholders on the Closing Merger Consideration.
(ev) If any portion of the Closing Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings the Representative 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 Holdings the Representative that such Tax has been paid or is not payable.
(fvi) Any portion of the Closing Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days Shareholders 12 months after the Effective Time shall be returned to Holdings, upon demandthe Buyer by joint instructions of the Buyer and the Representative delivered to the Escrow Agent, and the Buyer shall hold the Representative harmless for any such Target Company Stockholder unclaimed funds. Any such Shareholder who has not exchanged Certificates for the Closing Merger Consideration in accordance with this Section 2.10 prior to 1.8(g) before that time shall thereafter look only to Holdings Buyer for delivery payment of the Closing Merger Consideration; provided, that any such portion of the Closing Merger Consideration payable from the - 15 - 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 Earnout or the adjustment in accordance with Section 1.6 to which the Shareholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Buyer 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 LawsLegal Requirements. Any amounts remaining unclaimed by Target Company Stockholders Shareholders two years after the Effective Time (or such earlier date, immediately prior to before such time when the amounts would otherwise escheat to or become property of any Governmental Entitygovernmental authority) shall become, to the extent permitted by applicable LawLegal Requirement, the property of Holdings Buyer free and clear of any claims or interest of any Person previously entitled thereto, and the Shareholders shall look solely to the Buyer for any claims relating to such amounts.
(gvii) Any Buyer shall retain any portion of the Closing Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares and shall be returned hold the Representative harmless for such funds.
(viii) Buyer shall provide written notice to Holdingsthe Representative: (1) other than with respect to payments jointly authorized by the Buyer and the Representative, upon demandeach time Buyer makes a payment to a Shareholder under this Section 1.8(g), such notice to include the name of the Shareholder and the amount paid; (2) of any amount remaining unclaimed six (6) months and nine (9) months after the Effective Time.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior Prior to the Effective Time shall automatically be cancelled Closing Date, Acquiror shall, at its sole cost and retired and shall cease expense, appoint an exchange agent reasonably acceptable to exist, and, subject to Section 2.9, either the Company (i) each holder of a certificate formerly representing any Shares (each, a the “CertificateExchange Agent”) 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 Merger (First Merger; provided, however, that Acquiror shall afford the “Company the opportunity to review any proposed Contract with the Exchange Agent”).
(c) As promptly as practicable following Agent prior to execution, and shall accept the date hereof and in any event not later than five (5) Business Days thereafterCompany’s reasonable comments thereto. Prior to the Closing Date, Holdings Acquiror shall cause the Exchange Agent to mail to each holder of Shares 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 and substance reasonably satisfactory to the parties attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates 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 Merger 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 2.8(b). Holdings shall, no later than 3.01 that has delivered a Certificate (only to the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of 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 documents tax forms that Holdings the Exchange Agent may reasonably require in connection therewith, deliver ) at least three (3) Business Days prior to the holder of such Certificate such holder’s Closing Date, the portion of the Merger Total 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 cancelledcanceled; 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 shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(d) and Dissenting SharesShares 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 Merger Consideration as provided in Section 2.8(b)Total Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to Holdingsthe Exchange Agent, it shall be cancelled canceled and exchanged as provided in this Section 2.103.04(a).
(db) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in No dividends or other distributions declared or made after the future in Effective Time with 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 Acquiror Common Stock with 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 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 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 record date after the Effective Time shall be returned paid to Holdingsthe 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, upon demandtax 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 any such Target Company Stockholder who has not exchanged Certificates for (ii) at the Merger Consideration in accordance appropriate payment date, the amount of dividends or other distributions, with this Section 2.10 a record date after the Effective Time but prior to that time shall thereafter look only surrender and a payment date occurring after surrender, payable with respect to Holdings for delivery such whole shares of the Merger Consideration. Notwithstanding the foregoing, Holdings 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. Acquiror Common Stock.
(c) Any amounts Closing Consideration and Non-Accredited Holder Cash Consideration remaining unclaimed by Target the Company Stockholders two 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 EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(gd) Any 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 Merger Total Consideration made available pursuant to Section 3.03, with the Exchange Agent Company Optionholders being required to deliver an option cancellation agreement in respect lieu of any Dissenting Shares a Certificate (in a form to be mutually agreed by the Acquiror and the Company).
(f) The provisions of this Section 3.04 shall be returned apply, mutatis mutandis, to HoldingsNoteholders entitled to a portion of the Total Consideration pursuant to Section 3.03, upon demandwith the Noteholders being required to deliver their applicable Payoff Letter.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares Shares, all Options, all Outstanding Warrants and all Incentive Units outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder Stockholder of a certificate formerly representing any Shares (each, a “Certificate”) ), each Optionholder, Warrantholder and each holder of Incentive Units shall cease to have any rights as a stockholder Stockholder of the Target Company; , an Optionholder, a Warrantholder or (ii) in the case a holder of uncertificated shares, such holder shall cease Incentive Units except as to have any rights receive payments with respect thereto as a stockholder of the Target Company without any further actionprovided herein.
(b) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof Effective Time and in any event not later than five two (52) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Shares Company Stock a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”,” in the form attached hereto as Exhibit B) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five two (52) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration Certificate, a cash amount as provided in Section 2.8(b) 2.08(b), with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) Each Target As promptly as practicable following the Closing Date and in any event not later than two (2) Business Days thereafter, the Surviving Corporation shall mail or otherwise deliver (i) to each Optionholder and Warrantholder who has not exercised Options or Outstanding Warrants prior to Closing an option or warrant termination agreement, as applicable (an “Optionholder Agreement,” as set forth in the form attached hereto as Exhibit C), and (ii) to each holder of Incentive Units an incentive unit termination agreement (the “Incentive Unit Agreement,” as set forth in the form attached hereto as Exhibit D), in each case, together with instructions for completing, executing and returning such Optionholder Agreement or Incentive Unit Agreement to the Company Stockholder in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.09. With respect to Optionholders or Warrantholders that are not Company employees, Parent and the Surviving Corporation shall also be entitled cause the Exchange Agent to promptly deliver to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate Optionholder or Warrantholder a cash amount as provided in this Section 2.09 with respect to any unexercised Options or Outstanding Warrants, provided that such Person has delivered to the Surviving Corporation a duly completed and validly executed Optionholder Agreement. The Surviving Corporation shall pay the applicable portion of the Merger Consideration to a respective Optionholder or holder of Incentive Units that is an employee of the Company with respect to all In-Money Options or Incentive Units held by such employee through payroll during the first scheduled payroll that is at least three (3) Business Days following the Effective Time, provided that such employee has delivered to the Surviving Corporation a duly completed and validly executed Optionholder Agreement or Incentive Unit Agreement, at the respective time and subject to the contingencies specified herein and thereinas applicable.
(e) Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of the Effective Time Holders on the Merger Consideration.
(f) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety Effective Time Holders twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder Effective Time Holder who has not exchanged Certificates or delivered Letters of Transmittal, Optionholder Agreements or Incentive Unit Agreements for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Fund shall be held and distributed to the Effective Time Holders 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 Effective Time Holders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings (i) any amounts remaining in the General Indemnity Escrow and not otherwise subject to a pending Direct Claim or Third Party Claim for indemnification shall, promptly following the twelve (12) month anniversary of the Closing Date, be distributed to the Effective Time Holders, and (ii) any amounts remaining in the Tax Indemnity Escrow and not otherwise subject to a Direct Claim or Third Party Claim for a Specific Tax Indemnity Matter shall, promptly following the twelve (12) month anniversary of the Closing Date, be distributed to the Effective Time Holders. Further, notwithstanding the foregoing, Parent and the Surviving Corporation 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 Target Company Stockholders the Effective Time Holders two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand. In the event the Merger Consideration payable pursuant to this Agreement exceeds the amount owed to any Effective Time Holder that has perfected his/her/its appraisal rights and obtained a “fair value” pursuant to Section 262 of the DGCL, the amount of such excess shall be awarded (i) fifty percent (50%) to Parent, and (ii) fifty percent (50%) to those Effective Time Holders that had not exercised their appraisal rights, in accordance with each such Effective Time Holder’s Pro Rata Share.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Time, Buyer shall appoint an agent (the "EXCHANGE AGENT") for the purpose of exchanging certificates representing Shares for the Merger Consideration. Buyer will make available to the Exchange Agent, in such amounts as may be needed from time to time, the Merger Consideration to be paid in respect of the Shares. Such funds shall be invested by the Exchange Agent as directed by the Buyer, provided that such investments shall be in obligations of or guaranteed by the United States of America or any agency thereof and backed by the full faith and credit of the United States of America, or in deposit accounts, certificates of deposit or banker's acceptances of, repurchase or reverse repurchase agreement with, or Eurodollar time deposits purchased from, commercial banks with capital, surplus and undivided profits aggregating in excess of $150 million (based on the most recent financial statements of such bank which are then publicly available). Promptly after the Effective Time, Buyer will send, or will cause the Exchange Agent to send, to each holder of Shares (other than the holders of Shares to be canceled as set forth in Section 1.02(a) or Dissenting Shares (as defined in Section 1.04)) at the Effective Time 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 to the Exchange Agent).
(b) Each holder of Shares that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a certificate or certificates representing such Shares, together with a properly completed and duly executed letter of transmittal covering such Shares, will be entitled to receive the Merger Consideration payable in respect of such Shares. From and after the Effective Time, all shares which have been so converted shall no longer be outstanding and shall automatically be canceled and retired and each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive such Merger Consideration. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights with respect to such Shares except as a stockholder otherwise provided in this Agreement or by applicable law. All cash paid upon the surrender of certificates in accordance with the Target Company; or (ii) in the case terms of uncertificated shares, such holder this Section 1.03 shall cease be deemed to have any been paid in full satisfaction of all rights as a stockholder of pertaining to the Target Company without any further action.
(b) Holdings, Shares previously represented by such certificates. No interest shall accrue or a transfer agent appointed by Holdings, shall act as the exchange agent in be paid on the Merger (Consideration payable upon the “Exchange Agent”)surrender of any certificate.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) 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 paid to a Person (as defined below) other than the Person registered holder of the Shares represented by the certificate or certificates surrendered in whose name the surrendered Certificate is registeredexchange therefor, it shall be a condition to such delivery payment that (i) such Certificate the certificate or certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate Shares or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax 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.
(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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Major Realty Corp)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately No later than five business days prior to the Effective Time Closing Date, HoldCo shall automatically be cancelled and retired and shall cease appoint a bank or trust company reasonably acceptable to exist, and, subject the Company to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”) for the purpose of exchanging (i) for the Common Stock Consideration (A) certificates representing shares of Company Common Stock (the “Common Certificates”) or (B) uncertificated shares of Company Common Stock (the “Uncertificated Common Shares”).
, and (cii) As for the Preferred Stock Consideration (A) certificates representing shares of Company Series C Preferred Stock (the “Preferred Certificates” and together with the Common Certificates, the “Certificates”) or (B) uncertificated shares of Company Series C Preferred Stock (the “Uncertificated Preferred” and together with the Uncertificated Common Shares, the “Uncertificated Shares”). At or prior to the Closing, the Parent Entities shall have deposited, or shall have caused to be deposited with or provided to, (1) the Depositary Bank, or a nominee for the Depositary Bank, a number of HoldCo Shares equal to the aggregate number of HoldCo ADSs to be issued as Common Stock Consideration and (2) the Exchange Agent, in escrow (x) for the benefit of the holders of Company Common Stock, irrevocable written instruction to cause the aggregate number of HoldCo ADSs to be issued as Common Stock Consideration, (y) for the benefit of the holders of Company Common Stock, receipts (or uncertificated book-entries, as applicable) representing such aggregate number of HoldCo ADSs, and (z) for the benefit of the holders of the Series C Preferred Stock, an amount in cash in U.S. dollars sufficient to pay the Preferred Stock Consideration. In addition, the Parent Entities shall deposit, or cause to be deposited, with the Exchange Agent, as necessary from time to time at or after the Closing any dividends or distributions payable pursuant to Section 2.04(f). All cash and HoldCo ADS, whether evidenced by receipts or book-entries, together with any dividends or distributions and cash in lieu of fractional shares in accordance with Section 2.05 deposited with or provided to the Exchange Agent by or on behalf of HoldCo, shall be referred to in this Agreement as the “Exchange Fund”. If for any reason the Exchange Fund is inadequate to pay the amounts to which holders of Company Stock shall be entitled under Section 2.03, the Parent Entities shall promptly as practicable following deposit, or cause to be deposited promptly, additional cash with the date hereof Exchange Agent sufficient to make all cash payments of the aggregate Preferred Stock Consideration and any cash payable in lieu of fractional HoldCo ADSs and additional HoldCo ADSs with the Exchange Agent (and additional HoldCo Shares with the Depositary Bank) sufficient to make all payments of the aggregate Common Stock Consideration, and Parent, HoldCo and the Surviving Corporation shall in any event be liable for payment thereof. Promptly after the Closing, (I) the Parent Entities will instruct the Exchange Agent to pay the Merger Consideration out of the Exchange Fund in accordance with the terms of this Agreement (and, for the avoidance of doubt, the Exchange Funds shall not later be used for any purpose other than five the delivery of the Merger Consideration) and (5II) Business Days thereafterHoldCo shall send, Holdings or shall mail cause the Exchange Agent to send, to each holder of Shares shares of Company Stock as of immediately prior to the First 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 Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. Subject to Section 2.04(e), the Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to ADSs held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect thereto for the account of Persons entitled thereto. No later than ten (10) Business Days prior to the Closing Date, the Parent Entities shall enter into an agreement with the Exchange Agent, in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for Company, to effect the applicable portion terms of this Agreement (the “Exchange Agent Agreement”).
(b) At the First Effective Time, the stock transfer records of Merger Sub I shall record the issuance of all Merger Sub I Shares issuable in the First Merger as of the First Effective Time such that immediately following the First Effective Time such Merger Sub I Shares shall be deemed issued and outstanding Merger Sub I Shares. From and after the First Effective Time stock certificates previously evidencing ownership of shares of Company Common Stock converted in the First Merger into Merger Sub I Shares shall no longer evidence ownership of shares of Company Common Stock but shall evidence only ownership of the Merger Sub I Shares into which the Merger Sub I Shares previously represented by such stock certificates were converted in the First Merger. Each holder of shares of Company Common Stock that have been converted into the right to receive Merger Sub I Shares in connection with the First Merger, and which Merger Sub I Shares are in turn converted into the right to receive the Merger Consideration pursuant in connection with the Second Merger, shall be entitled to Section 2.8(b). Holdings shallreceive, no later than the later of upon (i) surrender to the Closing Date or (ii) five (5) Business Days after receipt Exchange Agent of a Certificate, together with a Letter properly completed letter of Transmittal duly completed and validly executed 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 Common Stock Consideration or Preferred Stock Consideration, as applicable, in respect of the Company Stock represented by such Certificate or Uncertificated Share. For the avoidance of doubt, pursuant to the foregoing provisions, each Person entitled to receive Merger Sub I Shares in the First Merger shall instead receive an equal number of HoldCo ADSs (or at such Person’s option, HoldCo Shares) to be issued following the Second Merger as the Common Stock Consideration. The HoldCo ADSs constituting part of such Common Stock Consideration, at HoldCo’s option, shall be in uncertificated book-entry form, unless a physical ADR is requested by Person or is otherwise required by applicable Law, in which case the Parent Entities shall cause the Exchange Agent to send such physical ADR to such Person promptly in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledExchange Agent Agreement. Until so surrenderedsurrendered or transferred, as the case may be, each outstanding such Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) or Uncertificated Share shall be deemed from and represent for all purposes after the Effective Time, for all purposes, to evidence Closing only the right to receive the portion of the such Merger Consideration and, in the case of Common Certificates and Uncertificated Common Shares, the right to receive any dividends or other distributions pursuant to Section 2.04(f), in each case, as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in contemplated by this Section 2.10Article 2.
(d) 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.
(ec) If any portion of the Merger Consideration is to be delivered 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 delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax similar 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fd) After the First Effective Time, there shall be no further registration of transfers of shares of Company Stock. If, after the Closing, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration payable in respect thereof provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the Depositary Bank or Exchange Agent pursuant to Section 2.04(a) that remains unclaimed by the Target holders of shares of Company Stockholders ninety (90) days Stock twelve months after the Effective Time Closing shall be returned to Holdingsremitted to, or as designated by, HoldCo upon demand, and any such Target Company Stockholder holder who has not exchanged Certificates shares of Company Stock for the Merger Consideration in accordance with this Section 2.10 2.04 prior to that time shall thereafter look only to Holdings HoldCo for delivery payment of the Merger Consideration, and any dividends or other distributions with respect thereto pursuant to Section 2.04(f), in respect of such shares without any interest thereon. Notwithstanding the foregoing, Holdings none of the Parent Entities or the Surviving Corporation shall not be liable to any holder of Certificates shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by Target holders of shares of Company Stockholders two years after the Effective Time (or such earlier date, immediately prior to Stock as of such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Holdings HoldCo, free and clear of any claims or interest of any Person previously entitled thereto.
(gf) Any portion No dividends or other distributions with respect to HoldCo Shares or HoldCo ADSs, and no cash payment in lieu of the Merger Consideration made available fractional shares or HoldCo ADSs except as provided in Section 2.05, shall be paid to the Exchange Agent in respect holder of any Dissenting Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section 2.04. Following such surrender or transfer, there shall be returned paid, without interest, to Holdingsthe Person in whose name the HoldCo Shares or HoldCo ADSs have been registered at the time of such surrender or transfer, upon demand(i) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.05, (ii) at the time of such surrender or transfer, the dividends or other distributions with a record date after the Closing theretofore payable with respect to such HoldCo Shares or HoldCo ADSs and (iii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Closing and prior to such surrender or transfer and with a payment date subsequent to such surrender or transfer payable with respect to such HoldCo Shares or HoldCo ADSs.
Appears in 1 contract
Samples: Merger Agreement (Avon Products Inc)
Surrender and Payment. (a) At Prior to the Effective Time, Parent will appoint a bank or trust company reasonably acceptable to the Company (the "Exchange Agent") for the -------------- purpose of exchanging Common Stock Certificates. Immediately following the Effective Time, Parent shall deposit with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article III, through the ----------- Exchange Agent, certificates representing the shares of Parent Common Stock issuable pursuant to Article III in exchange for outstanding shares of Company ----------- Common Stock together with amounts sufficient in the aggregate to provide all Shares outstanding funds necessary for the Exchange Agent to make payments in lieu of fractional shares pursuant to Section 3.2(e) and any dividend payments pursuant to Section ------- 3.2(d) (such shares of Parent Common Stock and funds, together with any ------ dividends or distributions with respect thereto with a record date after the Effective Time, being hereinafter referred to as the "Exchange Fund"). -------------
(b) As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of record of Common Stock Certificates(s) which immediately prior to the Effective Time shall automatically represented outstanding shares of Company Common Stock, other than shares to be cancelled and canceled or retired and shall cease to existin accordance with Section 3.1(e), and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares a letter of transmittal (which ------ shall specify that delivery shall be effected, and risk of loss and title to the Common Stock Certificates shall pass, only upon delivery of the Common Stock Certificates to the Exchange Agent and shall be in such form and substance have such other provisions as Parent may reasonably satisfactory to the parties (a “Letter of Transmittal”specify) and (ii) instructions for use in effecting the surrender of the Common Stock Certificates in exchange for the applicable portion certificates representing shares of Merger Consideration pursuant to Section 2.8(b)Parent Common Stock. Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt Upon surrender of a CertificateCommon Stock Certificate for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by Parent, together with a Letter such letter of Transmittal transmittal, duly completed and validly executed in accordance with the instructions theretoexecuted, and any such other customary documents that Holdings as may reasonably require in connection therewithbe required by the Exchange Agent, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Common Stock Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate entitled to receive in exchange therefor a certificate representing that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence number of whole shares of Parent Common Stock which such holder has the right to receive pursuant to the portion provisions of this Article III, and the Common ----------- Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of the Merger Consideration as provided in Section 2.8(b). If after Company, a certificate representing the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that proper number of shares of Parent Common Stock 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 issued to a Person other than the Person in whose name the Common Stock Certificate so surrendered Certificate is registered, it shall be a condition to if such delivery that (i) such Common Stock Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings any transfer or other Tax taxes required as a result by reason of such payment the issuance of shares of Parent Common Stock to a Person other than the registered holder of such Common Stock Certificate or establish to the reasonable satisfaction of Holdings Parent that such Tax tax has been paid or is not payableapplicable. Until surrendered as contemplated by this Section ------- 3.2(b), each Common Stock Certificate shall be deemed at any time after the ------ Effective Time to represent only the right to receive upon such surrender the certificate representing the appropriate number of whole shares of Parent Common Stock, cash in lieu of any fractional shares of Parent Common Stock and any dividends to the extent provided in Section 3.2(d) as contemplated by this -------------- Section 3.2(b). No interest will be paid or will accrue on any cash payable in -------------- lieu of any fractional shares of Parent Common Stock or any dividend to the extent provided in Section 3.2(d). --------------
(c) All shares of Parent Common Stock issued upon the surrender for exchange of Common Stock Certificates in accordance with the terms of this Article III (including any cash issued in lieu of fractional shares) shall be ----------- deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock theretofore represented by such Common Stock Certificates. At and after the Effective Time, the stock transfer books of the Company will be closed, and there will be no further registration of transfers of shares of the Company Common Stock or the Series "A" Preferred Stock outstanding prior to the Effective Time. If, at or after the Effective Time, Common Stock Certificates are presented to the Surviving Corporation, they will be canceled and exchanged in accordance with this Article III. -----------
(d) No dividends or other distributions with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Common Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 3.2(e) until the -------------- surrender of such Common Stock Certificate in accordance with this Article III. ----------- Subject to the effect of applicable laws, following surrender of any such Common Stock Certificate, there shall be paid to the holder of the certificate representing whole shares of Parent Common Stock issued in exchange therefor, without interest, (i) at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 3.2(e) and the amount of dividends or -------------- other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock.
(e) No certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of the Common Stock Certificates. Each holder of Company Common Stock issued and outstanding at the Effective Time which would otherwise be entitled to receive a fractional share of Parent Common Stock upon surrender of the Common Stock Certificates for exchange pursuant to this Article III (after taking into account all shares of ----------- Company Common Stock then held by such holder) shall receive, in lieu thereof, cash in an amount equal to the value of such fractional share, which shall be equal to the fraction of a share of Parent Common Stock that would otherwise be issued multiplied by the Average Price.
(f) Any portion of the Merger Consideration that Exchange Fund which remains unclaimed by undistributed to the Target Company Stockholders ninety (90) days holders of Common Stock Certificates for six months after the Effective Time shall be returned delivered to HoldingsParent, upon demand, and any such Target Company Stockholder holders of Common Stock Certificates who has have not exchanged Certificates for the Merger Consideration in accordance theretofore complied with this Section 2.10 prior to that time Article III shall ----------- thereafter look only to Holdings Parent (as unsecured general creditors thereof) for delivery payment of their claim for Parent Common Stock, any cash in lieu of fractional shares of Parent Common Stock and any dividends or distributions with respect to Parent Common Stock.
(g) None of Parent, Magellan, the Merger Consideration. Notwithstanding Company or the foregoing, Holdings Exchange Agent shall not be liable to any holder Person in respect of Certificates for any amounts paid shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretolaw.
(gh) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by Parent, on a daily basis. Any portion interest and other income resulting from such investments shall be paid to Parent.
(i) Surviving Corporation shall be entitled to deduct and withhold from the Common Stock Merger Consideration otherwise payable pursuant to this Agreement to any holder of the Merger Consideration Common Stock Certificates such amounts as it is required by regulations to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign law. To the extent that amounts are so withheld by Surviving Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made.
(j) If any Common Stock Certificate is lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Common Stock Certificate to be lost, stolen, or destroyed and, if required by Parent, the posting by such Person of a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made available against it with respect to such Common Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Common Stock Certificate the Parent Common Stock, and any cash in lieu of fractional shares and any unpaid dividends or distributions with respect of any Dissenting Shares shall be returned to Holdingsthe Parent Common Stock, upon demandto which they are entitled pursuant hereto.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the mailing of the Proxy Statement (as defined in Section 4.4), Parent shall appoint an agent reasonably satisfactory to the Company (the "Exchange Agent") for the purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, all (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares outstanding (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Shares. Promptly after the Effective Time, the Surviving Corporation will send, or will cause the Exchange Agent to send, to each holder of Shares immediately prior to the Effective Time a letter of transmittal for use in such exchange (which shall automatically specify that the delivery shall be cancelled effected, and retired risk of loss and title shall cease to existpass, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder only upon proper delivery of the Target Company; or (ii) in certificates representing Shares to the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionExchange Agent).
(b) HoldingsEach holder of Shares that have been converted into a right to receive Merger Consideration, upon surrender to the Exchange Agent of a certificate or certificates formerly representing such Shares, together with a transfer agent appointed by Holdingsproperly completed letter of transmittal covering such Shares, shall act will be entitled to receive the aggregate Merger Consideration payable in respect of such Shares. Until so surrendered and except as otherwise set forth in Section 2.3, each such certificate shall, after the exchange agent in Effective Time, represent for all purposes, only the right to receive such Merger (the “Exchange Agent”)Consideration. No interest will be paid or will accrue on such Merger Consideration.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings No certificate or scrip representing fractional shares of Parent Common Stock shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting be issued upon the surrender of Certificates certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the applicable portion Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of Merger Consideration pursuant to Section 2.8(b)a stockholder of Parent. Holdings shallNotwithstanding any other provision of this Agreement, no later than the later each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the Closing Date or aggregate number of Shares represented thereby), (ii) five (5) Business Days after receipt In-The-Money Options who would otherwise have been entitled to receive a fraction of a Certificateshare of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, together with if such holder would otherwise have been entitled to receive a Letter fraction of Transmittal duly completed and validly executed a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in accordance with lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the instructions theretoclosing price of the Parent Common Stock on the NASDAQ National Market ("NASDAQ") (or, and any other customary documents that Holdings may reasonably require in connection therewithif the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, deliver such exchange) on the Closing Date, rounded down to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10nearest whole cent.
(d) Each Target Company Stockholder No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall also be entitled paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any amounts that may such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the future in amount of dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of the Shares formerly represented by such Certificate as provided in this AgreementParent Common Stock, without interest and (ii) at the respective time appropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and subject a payment date subsequent to the contingencies specified herein and thereinsurrender that are payable with respect to such whole shares of Parent Common Stock.
(e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be delivered paid to a Person (as defined below) other than the Person in whose name the surrendered Certificate is registeredregistered holder of such certificate or certificates, it shall be a condition to such delivery payment that (i) such Certificate the certificate or certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate Shares or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax 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.
(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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Usa Interactive)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding Purchaser shall designate a bank or trust company reasonably acceptable to the Company to act as paying agent (the "Paying Agent") for the payment of the Merger Consideration in respect of Certificates (as defined below) that, immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease Time, represent Common Shares entitled to exist, and, subject payment of the Merger Consideration pursuant to Section 2.91.2. Immediately prior to the Effective Time, either (i) each holder of a certificate formerly representing any Purchaser shall deposit, or cause to be deposited, in trust with the Paying Agent in cash the aggregate Merger Consideration into which Common Shares (each, a “Certificate”) shall cease have been converted pursuant to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated sharesSection 1.2, such holder shall cease amount being hereinafter referred to have any rights as a stockholder of the Target Company without any further action"Payment Fund."
(b) HoldingsPromptly after the Effective Time, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings 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 in form which shall specify that delivery shall be effected, and substance reasonably satisfactory risk of loss and title to the parties (a “Letter Certificates shall pass, only upon proper delivery of Transmittal”) the Certificates to the Paying Agent and instructions for use in effecting surrendering such Certificates and receiving the Merger Consideration in respect thereof. Upon the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a each such Certificate, together with a Letter duly executed letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, transmittal and any other customary documents that Holdings may reasonably require in connection therewithrequired documents, deliver to the Paying Agent shall, as soon as practicable, pay the holder of such Certificate such holder’s portion an amount equal to the product of (x) the Merger Consideration as provided multiplied by (y) the number of Common Shares formerly represented by such Certificate, less any required withholding taxes, in Section 2.8(b) with respect to consideration therefor, and such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding such Certificate that prior to the Effective Time represented Shares (other than Certificates representing Purchaser Shares, Common Shares held in the treasury of the Company or by any wholly-owned Subsidiary of the Company, LFSRI Shares or Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence represent solely the right to receive the portion 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 provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided set forth in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect 1.3 out of the Shares formerly represented by such Certificate Payment Fund. The Payment Fund shall not be used for any purpose other than as provided in this Agreement, at the respective time and subject to the contingencies specified herein and therein.
(e) herein. If any portion of 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 "Person"), other than the Person in whose name the Certificate surrendered Certificate is registered, it shall be a condition to such delivery right to receive such Merger Consideration that (i) such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, that the signatures on the Certificate shall be properly guaranteed, and (ii) that the Person requesting surrendering such payment or delivery Common Shares shall pay to Holdings the Paying Agent any transfer or other Tax taxes required as a result by reason of such the payment of the Merger Consideration to a Person other than the registered holder of such the Certificate surrendered, or shall establish to the reasonable satisfaction of Holdings the Paying Agent that such Tax has 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 Purchaser may require the owner of such lost, stolen or destroyed Certificate to execute and deliver to the Paying Agent a form of affidavit claiming such Certificate to be lost, stolen or destroyed in form and substance reasonably satisfactory to Purchaser, and the posting by such owner of a bond in such amount as Purchaser may determine is not payablereasonably necessary as indemnity against any claim that may be made against Purchaser or the Paying Agent.
(fc) Any portion of At any time following the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) date which is 135 days after the Effective Time Time, Surviving Corporation may require that the Paying Agent shall be returned deliver to HoldingsSurviving Corporation all cash, upon demandCertificates and other documents in its possession relating to the transactions contemplated by this Agreement. Thereafter, each holder of a Certificate (other than Certificates representing Purchaser Shares, Common Shares held in the treasury of the Company or by any wholly-owned Subsidiary of the Company, LFSRI Shares or Dissenting Shares) may surrender such Certificate to the Surviving Corporation and any such Target Company Stockholder who has not exchanged Certificates for (subject to applicable abandoned property, escheat and similar Laws) receive in consideration therefor the aggregate Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Considerationrelating thereto, without any interest or other income thereon. Notwithstanding the foregoing, Holdings none of Purchaser, Merger Sub, the Surviving Corporation, the Company or the Paying Agent shall not be liable to any holder Person in respect of Certificates for any amounts paid cash properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar LawsLaw. Any amounts remaining unclaimed by Target Company Stockholders two years after the Effective Time (or If any such earlier date, Certificates shall not 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 Entity) shall becomeAuthority, the cash payment in respect of such Certificate shall, to the extent permitted by applicable Law, become the property of Holdings the Surviving Corporation, free and clear of any all claims or interest interests of any Person previously entitled thereto.
(gd) Any portion Immediately prior to the Effective Time, the stock transfer books of the Company 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 return for the payment of the aggregate Merger Consideration relating thereto, as provided in this Section 1.3.
(e) From and after the Effective Time, all holders of Certificates evidencing ownership of Common Shares outstanding immediately prior to the Effective Time (other than the Certificates representing Purchaser Shares) shall cease to have any rights with respect to such Common Shares except (i) holders of Common Shares that are not Dissenting Shares may surrender such Certificates in exchange for the Merger Consideration made available pursuant to the Exchange Agent in respect this Agreement, (ii) holders of any Dissenting Shares shall be returned may perfect any rights of appraisal as a holder of Dissenting Shares that such holders may have pursuant to Holdings, upon demandSection 262 of the 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 this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Lazard Freres Real Estate Investors LLC)
Surrender and Payment. (a) At the Effective Time, all Shares Company Interests outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) and each holder of a certificate formerly representing any Shares (each, a “Certificate”) Member shall cease to have any rights as a stockholder member 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, Holdings shall act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares Company Interests a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit C (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates the Company Interests in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of Member such Certificate such holderMember’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledConsideration. Until so surrenderedfully executed Letter of Transmittal is received, each outstanding Certificate Company Interest that prior to the Effective Time represented Shares (other than Dissenting Shares) an ownership interests in the Company Interests shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder Member shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate Company Interests outstanding prior to the Effective Time as provided in this AgreementAgreement 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 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 surrendered Certificate Company Interest is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be Person deliver proper evidence showing its ownership of the Company Interests, as determined in proper form for transfersole discretion of Holdings, and (ii) the Person requesting such payment or delivery shall pay to Holdings any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate Company Interest or establish to the 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 Members three months after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder Member who has not exchanged Certificates for properly executed and returned the Merger Consideration Letter of Transmittal in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings for delivery payment of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates any Company Interests for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement (GigCapital2, Inc.)
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 2.92.08, either (i) 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 Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions.
(b) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof appointment of the Exchange Agent and in any event not later than five (5) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and Company Common Stock instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, no later than the later of (i) the 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, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.08(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shares of Company Common Stock shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) [Intentionally Omitted]
(e) 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 from the Escrow Funds as provided in this AgreementAgreement 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.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days six months after the Effective Time shall be returned to HoldingsParent, 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 Parent for delivery 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, Holdings 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 Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares Company Common Stock and all Warrants outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.7, either (i) each holder of a certificate formerly representing any Shares Company Common Stock (each, a “Certificate”) and each holder of record of a Warrant shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionWarrants.
(b) HoldingsPrior to the Effective Time, or a transfer Purchaser shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Shares Company Common Stock a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.5(c). Holdings shall, no No later than the later of (i) the Closing Date or (ii) five subject to Section 2.12, two (52) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent or Parent may reasonably require in connection therewith, deliver (1) the Exchange Agent shall pay to the holder such Stockholder a cash amount, and (2) Parent shall issue such number of such Certificate such holder’s portion shares of the Merger Consideration Parent Common Stock as provided in Section 2.8(b2.5(c) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on consideration payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.5(c). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.8.
(d) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, the Company shall mail to each Warrantholder a Warrant Termination Agreement substantially in the form attached as Exhibit B (a “Warrant Termination Agreement”) and instructions for completing, executing and returning such Warrant Termination Agreement in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.6(a). No later than the later of (i) the Closing Date or (ii) two (2) Business Days after receipt of a Warrant Termination Agreement duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Exchange Agent may reasonably require in connection therewith, (i) the Exchange Agent shall pay to such Warrantholder a cash amount, and (ii) the Parent shall issue such number of shares of Parent Common Stock as provided in Section 2.6(a) with respect to the In-Money Warrants in respect of which the Warrant Termination Agreement was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any Merger Consideration payable upon delivery of any Warrant Termination Agreement.
(e) Each Target Company Stockholder and Warrantholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares Company Common Stock formerly represented by such Certificate and the cancelled In-Money Warrants from the Holdback Amount as provided in this AgreementAgreement and on account of the Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein and thereinherein. Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of Stockholders or Warrantholders on the Merger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any Each holder of a Certificate or In-Money Warrant who has not theretofore complied with the exchange procedures set forth in and contemplated by this Section 2.8 shall look only to Purchaser (subject to abandoned property, escheat and similar applicable Law) for its claim, only as a general unsecured creditor thereof, to any portion of the Merger Consideration that remains unclaimed by payable or issuable pursuant to this Agreement in respect of such Certificate or In-Money Warrant. Notwithstanding anything to the Target Company Stockholders ninety (90) days after contrary contained herein, if any Certificate or In-Money Warrant has not been surrendered prior to the earlier of the first anniversary of the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for date on which the applicable portion of 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 a public official payable or issuable pursuant to applicable abandoned property, escheat this Agreement in respect of such Certificate or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts In-Money Warrant would otherwise escheat to to, or become the property of of, any Governmental Entity) shall becomeBody, any amounts payable in respect of such Certificate or In-Money Warrant shall, to the extent permitted by applicable Law, become the property of Holdings Purchaser, free and clear of any all claims or interest interests of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsPurchaser, upon demand.
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Surrender and Payment. (a) At Not less than five (5) Business Days prior to the Effective Time, all Shares outstanding immediately prior Parent shall appoint an exchange agent reasonably acceptable to the Effective Time shall automatically be cancelled Company (the “Paying Agent”) to act as the agent and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder enter into an exchange agent agreement with such Paying Agent for the purpose of a certificate exchanging the Merger Consideration for certificates formerly representing any 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 aggregate Merger Consideration as required to be paid pursuant to Section 2.01; provided, that the Paying Agent shall cease distribute the funds received by it pursuant to have any rights as a stockholder of the Target Company; or 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 are then publicly available). Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation or Parent, and any amounts in excess of the aggregate amounts payable pursuant to Section 2.01, 2.07(a) and 2.07(b) shall be promptly returned to the Surviving Corporation or Parent, in each case as directed by Parent. Parent shall pay, or cause to be paid, all charges and expenses, including those of the Paying Agent, in connection with the exchange of Shares for the Merger Consideration. As promptly as practicable (but in no event later than three (3) Business Days after 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 letter of transmittal and instructions (which letter of transmittal and instructions shall be in the case of uncertificated shares, form and substance reasonably acceptable to Parent and the Company) for use in such holder shall cease to have any rights as a stockholder of the Target Company without any further actionexchange.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each Each holder of Shares a letter of transmittal in form and substance reasonably satisfactory that have been converted into the right to receive the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than 2.01(b) shall be entitled to receive the later Merger Consideration in respect of (i) the Closing Date or (ii) five (5) Business Days after receipt Company Common Stock 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 such other customary documents that Holdings as may reasonably require in connection therewith, deliver to be requested by the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledPaying Agent. Until so surrendered, each outstanding Certificate that prior and subject to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and terms set forth in Section 2.03, each such Certificate shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive the portion Merger Consideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender of any Certificate. Upon payment of the Merger Consideration as provided in Section 2.8(b). If after pursuant to the Effective Timeprovisions of this Article II, any each Certificate is presented or Certificates so surrendered shall immediately be cancelled, retired and will cease to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10exist.
(d) 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.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings the Paying Agent that such Tax has been paid or is not payable.
(fd) All Merger Consideration paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificate, and from and after the Effective Time, there shall be no further registration of transfers of Shares on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article II. No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date on or after the Effective Time shall be paid to the holder of any unsurrendered Certificates.
(e) Any portion of the Merger Consideration Payment Fund that remains unclaimed by the Target Company Stockholders ninety holders of Shares two (902) days years after the Effective Time shall be returned to Holdingsthe Surviving Corporation or Parent, upon demanddemand as directed by Parent, and any such Target Company Stockholder holder who has not exchanged Certificates Shares for the Merger Consideration in accordance with this Section 2.10 2.02 prior to that time shall thereafter look only to Holdings Parent, as a general creditor thereof, for delivery payment of the Merger Consideration. Notwithstanding the foregoing, Holdings none of Parent, Surviving Corporation or Company shall not be liable to any holder of Certificates Shares for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders two years after the Effective Time (or such earlier date, immediately If any Certificate shall not have been surrendered prior to such time when the amounts date on which the related Merger Consideration would otherwise escheat to or become the property of any Governmental Entity) shall become, any such Merger Consideration shall, to the extent permitted by applicable Law, immediately prior to such time become the property of Holdings Parent, free and clear of any all claims or interest of any Person person previously entitled thereto.
(gf) Any portion of the Merger Consideration made available to the Exchange Paying Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Research Pharmaceutical Services, Inc.)
Surrender and Payment. (a) At Prior to the Effective Time, all Parent shall appoint a bank or trust company to act as disbursing agent (the “Disbursing Agent”) for the payment of Per-Share Merger Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 2.7(b), Parent shall deposit or cause to be deposited with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 2.7(b) to holders of Shares (such amounts being hereinafter referred to as the “Exchange Fund”). For purposes of determining the amount to be so deposited, Parent shall assume that no stockholder of the Company will perfect any right to appraisal of his, her or its Shares. The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (iii) commercial paper rated the highest quality by either Xxxxx’x Investors Services, Inc. or Standard & Poor’s Corporation; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 2.7(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 2.7(b) shall be promptly paid to Parent. Parent shall promptly replenish the Exchange Fund to the extent of any investment losses. The Exchange Fund shall not be used for any other purpose.
(b) Parent and the Surviving Corporation shall instruct the Disbursing Agent to mail promptly after the Effective Time to each Person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any represented Shares (each, a “Certificate”) 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 Merger (the “Exchange AgentCertificates”) or non-certificated Shares represented by book-entry (“Book-Entry Shares”).
(c) As promptly as practicable following , and whose Shares were converted into the date hereof and in any event not later than five (5) Business Days thereafterright to receive Per-Share Merger Consideration pursuant to Section 2.7(b), Holdings shall mail to each holder a form of Shares a letter of transmittal in form (which shall specify that delivery shall be effected, and substance reasonably satisfactory risk of loss and title to the parties (a “Letter Certificates shall pass, only upon proper delivery of Transmittal”the Certificates or Book-Entry Shares to the Disbursing Agent) and instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for payment of the applicable portion of Per-Share Merger Consideration pursuant to Section 2.8(b)Consideration. Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt Upon surrender of a CertificateCertificate or transfer of a Book-Entry Share to the Disbursing Agent for cancellation, together with a Letter such letter of Transmittal transmittal duly completed executed and validly executed in accordance with such other documents as may be reasonably required by the instructions theretoDisbursing Agent, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of or Book-Entry Share shall be entitled to receive in exchange therefor the Per-Share Merger Consideration as provided payable in Section 2.8(b) with respect to of that Certificate or Book-Entry Share, less any required withholding of Taxes, and such Certificate or Book-Entry Share so surrendered and the Certificate shall forthwith be cancelledcanceled. Until so surrendered, each outstanding Certificate that prior to No interest will be paid or accrued on the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after cash payable upon the Effective Time, for all purposes, to evidence the right to receive the portion surrender of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10Certificates or Book-Entry Shares.
(d) 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.
(ec) If any portion of the Merger Consideration payment is to be delivered made to a Person other than the Person in whose name the Certificate surrendered Certificate is registered, it shall be a condition to such delivery of payment that (i) such the Certificate shall so surrendered be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery shall pay to Holdings any transfer or other Tax Taxes required as a result by reason of such the payment to a Person other than the registered holder of such the Certificate surrendered or establish to the reasonable satisfaction of Holdings the Surviving Corporation that such Tax has been paid or is not payableapplicable. Payment of the Per-Share Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered.
(d) Until surrendered in accordance with the provisions of this Section 2.8, each Certificate or Book-Entry Share (other than Certificates representing Shares or Book-Entry Shares owned by Parent, Merger Subsidiary or any other wholly-owned Subsidiary of Parent, Shares held by the Company or a wholly-owned Subsidiary of the Company and Dissenting Shares) shall represent for all purposes, from and after the Effective Time, only the right to receive the Per-Share Merger Consideration.
(e) At and after the Effective Time, there shall be no registration of transfers of Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable Law. The Per-Share Merger Consideration paid upon the surrender of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates or Book-Entry Shares, as applicable. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, such Certificates or Book-Entry Shares shall represent the right to receive the Per-Share Merger Consideration as provided in this Article II. At the close of business on the day of the Effective Time, the stock ledger of the Company shall be closed.
(f) Any portion of the Per-Share Merger Consideration that remains unclaimed by made available to the Target Company Stockholders ninety (90) days after the Effective Time Disbursing Agent to pay for Shares for which appraisal rights have been perfected shall be returned to HoldingsParent upon demand by Parent. At any time more than twelve (12) months after the Effective Time, the Disbursing Agent shall upon demanddemand of Parent deliver to Parent any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates or Book-Entry Shares (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, and any such Target Company Stockholder who has not exchanged holders of Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time or Book-Entry Shares shall thereafter look only to Holdings for delivery the Surviving Corporation (subject to the terms of the Merger Consideration. Notwithstanding the foregoingthis Agreement, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or and other similar Laws) as general creditors thereof with respect to any Per-Share Merger Consideration that may be payable, without interest, upon due surrender of the Certificates or Book-Entry Shares held by them. Any amounts remaining unclaimed by Target Company Stockholders two years after the Effective Time (or such earlier date, immediately prior to such time when the such amounts would otherwise escheat to or become the property of any Governmental Entity) shall becomegovernmental unit or agency, shall, to the extent permitted by applicable Law, become the property of Holdings the Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
(g) Any portion . Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or a Book-Entry Share for any Per-Share Merger Consideration made available to the Exchange Agent delivered in respect of such Certificate or Book-Entry Share to a public official pursuant to any Dissenting Shares shall be returned to Holdingsabandoned property, upon demandescheat or other similar Law.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall designate PNC Bank, National Association or, if not PNC Bank, National Association, then a United States bank, trust company or other party reasonably acceptable to the Company, to act as payment agent (the “Paying Agent”) in the Merger.
(b) 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 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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 Merger (the “Exchange Agent”).
(c) As Prior to or as promptly as practicable following the date hereof and in any event not later than five two (52) Business Days thereafter, Holdings Paying Agent shall mail send to each holder of Shares Company Stock a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration Per-Share Cash-Out Amount that such holder is entitled to receive pursuant to Section 2.8(b2.08(b). Holdings Paying Agent shall, no later than the later of (i) three (3) Business Days after the Closing Date or (ii) five three (53) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, such documents that are required under Section 2.08(b), and any other customary documents that Holdings Paying Agent may reasonably require in connection therewith, deliver to the holder of such Certificate the Per-Share Cash-Out Amount that such holder’s portion Stockholder is entitled to receive pursuant to Section 2.08(b). No interest shall be paid or shall accrue on any cash payable upon surrender of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledany Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Company Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as Per-Share Cash-Out Amount provided for in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to HoldingsParent after the Effective Time, it shall be cancelled and exchanged as provided in this Section 2.102.11. Notwithstanding any other provision of this Agreement, the 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 post-Closing adjustments set out therein, shall satisfy the obligations of Parent and Merger Sub to make any payment of the Per-Share Cash-Out Amount at Closing.
(d) 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 Notwithstanding anything herein to the contingencies specified herein and therein.
(e) If any portion contrary, none of Parent, the Merger Consideration is to be delivered to a Person other than Surviving Corporation nor the Person in whose name the surrendered Certificate is registered, it Paying Agent 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 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 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 Stockholder for any amounts paid cash or other payment delivered to a public official Governmental Authority pursuant to applicable any abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At Acquiror has entered into the Effective Time, all Shares outstanding immediately prior to Exchange Agent Agreement with CompuShare (the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “CertificateExchange Agent”) 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 Merger (Merger. The Exchange Agent has established an electronic portal to facilitate the “electronic submission of documents by Company Preferred Stockholders. The Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings Agent shall mail send to each holder of Shares record of Company Stock entitled to receive a portion of the Closing Merger Consideration pursuant to Section 3.01 a letter of transmittal in the form and substance reasonably satisfactory to the parties attached hereto as Exhibit D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates 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 Closing Merger Consideration payable to such holder. The Exchange Agent shall (A) at or promptly following the Effective Time, issue to each holder of record of Company Preferred Stock entitled to receive a portion of the Closing Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than 3.01 that has delivered a Certificate (only to the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of extent such Company Preferred Stock is represented by a Certificate, ) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, thereto and any other customary documents tax forms that Holdings the Exchange Agent may reasonably require in connection therewith, deliver ) at least three (3) Business Days prior to the holder of such Certificate such holder’s Closing Date, the portion of the Closing Merger Consideration as provided in Section 2.8(b) with respect to such Certificate (or any Company Preferred Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be cancelledcanceled; and (B) following the Effective Time, with respect to any holder of record of Company Proffered Stock entitled to receive a portion of the Closing Merger Consideration pursuant to Section 3.01 that did not receive such portion of the Closing Merger Consideration pursuant to the preceding clause (A), no later than three (3) Business Days after receipt of a Certificate (only to the extent such Company Preferred Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require in connection therewith), issue to the holder of such Certificate (or any Company Stock not represented by a Certificate) the portion of the Transaction 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 Closing Merger Consideration into which such Company Preferred Shares have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(c)) and Section 3.01(a), respectively, in accordance with the Ownership Allocation as set forth in the Spreadsheet, electronically through book entry-delivery or, upon the written request of any Company Preferred Stockholder, in the form of an original stock certificate to the address set forth in such Company Preferred Stockholder’s Letter of Transmittal. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Closing Merger Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented Shares shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(c) and Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Closing Merger Consideration as provided in Section 2.8(b)Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to Holdingsthe Exchange Agent, it shall be cancelled canceled and exchanged as provided in this Section 2.103.04(a).
(db) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in No dividends or other distributions declared or made after the future in Effective Time with 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 Acquiror Common Stock with 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 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 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 record date after the Effective Time shall be returned paid to Holdingsthe 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, upon demandtax 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 any (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 Target Company Stockholder who has not exchanged Certificates for whole shares of Acquiror Common Stock.
(c) Any portion of the Final 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target the Company Preferred Stockholders two 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 EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(gd) Any If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity, in form and substance approved by the Company and the Exchange Agent, by the Person claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Certificate, the portion of the Closing Merger Consideration made available to the Exchange Agent be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
(e) Notwithstanding anything else in this Agreement, no certificates or scrip representing a fractional share of Acquiror Common Stock will be issued to any Dissenting Shares of the Company Preferred Stockholders in connection with payment of the Final Merger Consideration, and to the extent a fractional share of Acquiror Common Stock would have been issuable to a Company Preferred Stockholder as part of the Final Merger Consideration, Acquiror shall be returned issue a number of shares of Acquiror Common Stock rounded to Holdings, upon demandthe nearest whole number of shares of Acquiror Common Stock to such Company Preferred Stockholder with respect to each such payment.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares Shares, Options and Warrants outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of an Option or Warrant shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions or Warrants.
(b) HoldingsIn exchange for the applicable portion of Merger Consideration pursuant to Section 2.08(c), or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares Series A Preferred Stock shall deliver a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b)Certificates. Holdings Parent shall, no later than the later of (i) the Closing Date or (ii) five three (53) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Parent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.08(c) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares shares of Series A Preferred Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Parent, it shall be cancelled and exchanged as provided in this Section 2.102.12. 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.
(c) 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 customary documents that the 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 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) Each Target Company Stockholder 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 delivered paid to a Person other than the Person in whose name the surrendered Certificate and Warrant is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings 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 Target Company Stockholders ninety Equityholders twelve (9012) days months after the Effective Time shall be returned to Holdingsthe Parent, upon written demand, and any such Target Company Stockholder Equityholder who has not exchanged Certificates or Warrant Termination Agreements for the Merger Consideration in accordance with this Section 2.10 2.12 prior to that time shall thereafter look only to Holdings Parent for delivery 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, Holdings 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 Target Company Stockholders Equityholders two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings the Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
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 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) Stockholder and each Optionholder shall cease to have any rights as a stockholder or an optionholder 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) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof Closing Date and in any event not no later than five thirty (530) Business Days calendar days thereafter, Holdings the Exchange Agent shall mail to each holder of Shares Stockholder a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates such Stockholder’s certificate formerly representing any Shares (each, a “Certificate”) in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, as soon as practicable thereafter, but no later than the later of ten (i) the Closing Date or (ii) five (510) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.08(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time (but after the effective time of the Taxable Distribution Transaction) represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) 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 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 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 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 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 Target Company 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 Certificate, and in respect of the In-Money Options cancelled pursuant to Section 2.09(a), from the Escrow Funds as provided in this AgreementAgreement 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.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery 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 or delivery shall pay to Holdings 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 Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety and Optionholders twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demanddemand at the discretion of Parent, and any such Target Company Stockholder or Optionholder who has not exchanged Certificates or delivered Option Termination Agreements for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery 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, Holdings Parent shall not be liable to any holder of Certificates or In-Money Options for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders or Optionholders two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Samples: Merger Agreement (Aegion Corp)
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 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) 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) HoldingsPrior to the Effective Time, or a transfer agent appointed by HoldingsParent shall appoint PNC Bank, shall act National Association, (solely in its capacity as the exchange agent in the Merger (payments administrator, the “Exchange Agent”)) to act as the payment’s administrator in the Merger. All fees and expenses of the Exchange Agent shall be borne by the Company and shall be included in Transaction Expenses.
(c) As promptly as practicable following the date hereof and in any event not no later than five (5) two Business Days thereafter, Holdings Parent shall cause the Exchange Agent shall mail to each holder of Shares a letter of transmittal in substantially the form and substance reasonably satisfactory to the parties attached as Exhibit G (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for such holder’s receipt of the applicable portion of Merger Consideration per the Closing Merger Consideration Schedule pursuant to Section 2.8(b2.10(b). Holdings shallParent shall cause the Exchange Agent to, no later than the later of (i) the Closing Date or (ii) five (5) two Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the such holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.10(b) with respect to the former Shares held by such Certificate so surrendered and the Certificate holder. Unless otherwise provided herein, no interest shall forthwith be cancelledpaid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shares of Company Capital Stock shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b)herein. If after the Effective Time, any Certificate is if presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.12.
(d) 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 Agreementfrom the Holdback (if any) or on account of a 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.
(e) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 Holdings 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 EntityAuthority) shall be returned to Parent, shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto. Parent shall not be liable to any Stockholder 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 in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At Promptly following the Effective Time, all Shares outstanding immediately prior the Surviving LLC will deliver, or cause to be delivered, to Imperial the Closing Date Free Delivery Instructions, substantially in the form attached hereto as Exhibit C, together with any additional instructions and/or documents required by Imperial in connection with the Closing Date Free Delivery Instructions.
(b) Promptly after the Effective Time (but in no event later than five Business Days after the Effective Time), the Surviving LLC shall automatically cause the Transfer Agent to send to each Unitholder that has not delivered a properly completed Letter of Transmittal a notice to the Unitholders, in form and substance reasonably acceptable to the Surviving LLC, and instructions for use in the exchange of such Units for Merger Consideration pursuant to and in accordance with Section 2.03.
(c) Each Remaining Unitholder holding Units that have been converted into the right to receive the Merger Consideration pursuant to and in accordance with Section 2.03 shall be cancelled and retired and shall cease entitled to existreceive, andupon delivery to the Transfer Agent of a properly completed Letter of Transmittal, the Merger Consideration in respect of such Units, subject to Section 2.92.06, either (i) and Purchaser shall, as promptly as practicable following the receipt by the Transfer Agent of such properly completed letter of transmittal, deliver, or cause to be delivered, to Imperial free delivery instructions and/or other instructions or documents in respect of such Remaining Unitholder’s Merger Consideration, to the extent required in connection with the payment thereof. From and after the Effective Time, each Unit shall represent, for all purposes, only the right to receive such Merger Consideration, and any holder of a certificate formerly representing any Shares (each, a “Certificate”) Units shall cease to have any rights as a stockholder of with respect thereto except to receive 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 Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(bSections 2.03(b) and 2.03(c). Holdings shall, no later than the later of (i) the 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) 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 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 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 a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Samples: Merger Agreement
Surrender and Payment. (a) 1.8.1 At the Effective Time, all Shares and all Options outstanding immediately prior to the Effective Time shall automatically be cancelled canceled and retired and shall cease to exist, and, subject to Section 2.9, either (i) and each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of any Options shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated sharesOptions, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionapplicable.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) 1.8.2 As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings the Stockholder Representative shall mail deliver to each holder of Shares a letter of transmittal in form and substance reasonably satisfactory to the parties (a “Letter of Transmittal”) and CardCash Common Stock instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Closing Merger Consideration pursuant to Section 2.8(b)1.7.1. Holdings The Stockholder Representative shall, no later than the later of (ia) the Closing Date or and (iib) 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, and any other customary documents that Holdings may reasonably require in connection therewith, deliver (or cause to be delivered) to the holder of such Certificate such holder’s the applicable portion of the Closing Merger Consideration as provided in pursuant to Section 2.8(b) 1.7.1 and the Proceeds Allocation Document with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledcanceled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Closing Merger Consideration deliverable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Closing Merger Consideration as provided in Section 2.8(b)1.7.1 and the Proceeds Allocation Document. If after the Effective Time, any Certificate is presented to Holdingsthe Stockholder Representative, it shall be cancelled and exchanged as provided in this Section 2.101.8.2.
(d) 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 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 Holdings that such Tax has been paid or is not payable.
(f) 1.8.3 Any portion of the Closing Merger Consideration that remains unclaimed by the Target Company CardCash Stockholders ninety two (902) days months after the Effective Time shall be returned to HoldingsRDE, upon demand, and any such Target Company CardCash Stockholder who has not exchanged Certificates for the Closing Merger Consideration in accordance with this Section 2.10 1.8.3 prior to that time shall thereafter look only to Holdings RDE for delivery payment of the Closing Merger Consideration. Notwithstanding the foregoing, Holdings RDE 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 Target Company CardCash Stockholders two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings RDE free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion 1.8.4 RDE shall pay, or cause the Surviving Corporation to pay, all charges and expenses, including those of the Stockholder Representative, in connection with the exchange of CardCash Common Stock for the Closing Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demandConsideration.
Appears in 1 contract
Samples: Merger Agreement (RDE, Inc.)
