Surrender of Shares; Payment of Merger Consideration. (a) Prior to the Effective Time, Parent will select a bank or trust company in the United States, reasonably acceptable to the Company, to act as paying agent (the “Paying Agent”) for the payment of the applicable Merger Consideration due hereunder to the Shareholders upon surrender of the Certificates formerly representing Shares. Prior to the Effective Time, Parent shall pay to the Paying Agent in cash the aggregate amount of the Closing Net Consideration, less the Closing Option Amount (the “Payment Fund”). The Payment Fund will not be used for any purpose except as expressly provided in this Agreement. The Paying Agent will invest the Payment Fund as directed by Parent on a daily basis, provided such investments shall be limited to direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, commercial paper rated A-1 or P-1 by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Rating Group, respectively, or certificates of deposit issued by a commercial bank having at least $25 billion in assets. No investment income or gain or loss thereon shall affect the amounts payable to the holders of Shares. Any interest and other income or gain resulting from such investments shall not be part of the Payment Fund, and shall be the sole and exclusive property of Parent, payable to Parent upon its request. (b) Promptly after the Effective Time and in any event within three Business Days thereof, the Surviving Corporation or Parent will cause the Paying Agent to mail to each holder of record of one or more certificates representing ownership of Shares (the “Certificates”), (i) a letter of transmittal in the form attached hereto as Annex A, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the applicable portion of the Payment Fund. Upon surrender of a Certificate for cancellation to the Paying Agent, together with such letter of transmittal, duly completed and executed, the holder of such Certificate will be entitled to receive in exchange therefor the amount of cash equal to the Common Price Per Share or the Preferred Price Per Share, as applicable, for each of the Shares previously represented by such Certificate (in each case, subject to deduction for any required withholding Tax), and the Certificate so surrendered will immediately thereafter be cancelled. No interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. In the event that the Merger Consideration is to be paid to a Person other than the Person in whose name any Certificate is registered, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer, that the signatures on such Certificate or any related stock power shall be properly guaranteed and that the Person requesting such payment shall pay any transfer or other Taxes required by reason of such payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of the Surviving Corporation that such Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 3.04, each Certificate shall be deemed at any time from and after the Effective Time to represent only the right to receive upon such surrender or transfer the Merger Consideration pursuant to Section 3.01 payable in respect of Shares theretofore represented by such Certificate, without any interest thereon. If any holder of Shares is unable to surrender such holder’s Certificates because such Certificates have been lost, mutilated or destroyed, such holder shall deliver in lieu thereof an affidavit in form and substance reasonably satisfactory to the Surviving Corporation, and, if reasonably required by the Paying Agent or the Surviving Corporation, post a bond in such amount as may be directed by the Paying Agent or the Surviving Corporation, as applicable, as indemnity against any claim that may be made in respect of such Certificate. (c) At least three Business Days prior to the Effective Time, the Company shall provide to Parent a list of all holders of Options for which payment is to be made promptly after the Effective Time pursuant to Section 3.02. Promptly after the Effective Time and in any event within three Business Days thereof, Parent will cause the Surviving Corporation to pay to each such Option Holder the amount of cash equal to the excess of the Common Price Per Share over the applicable per share exercise price for each Share subject to such Option (without interest, and subject to deduction for any required withholding Tax). (d) After the Effective Time there will be no further registration on the stock transfer books of the Surviving Corporation of (i) transfers of Shares or (ii) the exercise of Options that were outstanding immediately prior to the Effective Time. (e) Any portion of the Payment Fund that remains undistributed to the Shareholders six months after the Effective Time will be delivered to the Surviving Corporation, upon demand, and any Shareholder that has not previously complied with this Section 3.04 will thereafter look only to the Surviving Corporation, as general creditors thereof, for payment of such Shareholder’s claim for the Merger Consideration, without interest. (f) None of Parent, the Company, the Surviving Corporation or the Paying Agent, nor any of their respective officers, directors, employees, agents or counsel, will be liable to any Person in respect of any Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. (g) Notwithstanding anything to the contrary contained in this Section 3.04, Parent will use commercially reasonable efforts to cause the Paying Agent to pay immediately following the Effective Time, to each Shareholder by check or wire transfer of immediately available funds, the portion of the Payment Fund (less any applicable withholding Taxes) payable to such Shareholder, if such Shareholder has delivered to the Paying Agent properly executed letters of transmittal (in the form required by this Section 3.04), wire transfer instructions and the Certificates evidencing such Shares of such Shareholder, a reasonable time prior to the Effective Time. Promptly following the Effective Time, Parent shall deposit with the Escrow Agent the Holdback Amount. No later than five Business Days prior to the anticipated date of the Closing, Parent will deliver to the Company a sufficient number of copies of (i) an acceptable form of letter of transmittal so as to permit each Shareholder to exercise his, her or its right to payment immediately after the Effective Time as provided in this Section 3.04(g), and (ii) any documents required by Parent to be executed by Option Holders so as to permit each Option Holder to receive the payment promptly after the Effective Time as provided in
Appears in 1 contract
Samples: Merger Agreement (Quidel Corp /De/)
Surrender of Shares; Payment of Merger Consideration. (a) Prior to At the Effective TimeClosing, from the Initial Merger Consideration Parent will select shall (i) deposit $1,000,000 (the "Escrow Amount") with a bank or trust company in the United States, reasonably acceptable to the Company, to act as paying mutually agreeable escrow agent (the “Paying "Escrow Agent”"), to be held and released by the Escrow Agent pursuant to the terms and conditions set forth in an escrow agreement which shall be substantially in the form of Exhibit D hereto ("Escrow Agreement"), (ii) if applicable, deposit the Remediation Escrow with the Remediation Escrow Agent pursuant to Section 7.5, and (iii) pay in full for the payment account of the applicable Company and the Shareholders (A) all unpaid broker's fees, commissions or costs owed to Xxxxxxxxxx Capital Corporation, (B) all unpaid attorneys and professional fees and costs incurred by the Company and the Shareholders, and (C) any other unpaid costs and expenses of the Company for which the Shareholders are responsible in accordance with Section 11.8 hereof in connection with the transactions contemplated by this Agreement and the Related Documents. The remainder of the Initial Merger Consideration due hereunder shall be delivered to the Shareholders upon surrender of pro rata in accordance with subparagraph (b) hereafter. The foregoing payments shall be made in accordance with a schedule to be provided by the Certificates formerly representing Shares. Prior Company and certified by the President and Controller at least five (5) days prior to the Effective Time, Parent shall pay to the Paying Agent in cash the aggregate amount of the Closing Net Consideration, less the Closing Option Amount Date (the “"Payment Fund”Schedule"). The Payment Fund will not be used for any purpose except as expressly provided in this Agreement. The Paying Agent will invest the Payment Fund as directed by Parent on a daily basis, provided such investments shall be limited to direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, commercial paper rated A-1 or P-1 by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Rating Group, respectively, or certificates of deposit issued by a commercial bank having at least $25 billion in assets. No investment income or gain or loss thereon shall affect the amounts payable to the holders of Shares. Any interest and other income or gain resulting from such investments shall not be part of the Payment Fund, and shall be the sole and exclusive property of Parent, payable to Parent upon its request.
(b) Promptly after Upon surrender to Parent of a properly endorsed certificate representing each of the Effective Time and in any event within three Business Days thereofshares of Company Common Stock (each, a "Certificate") or an affidavit of loss stating that the Surviving Corporation or Parent will cause the Paying Agent to mail to each holder of record of one or more certificates representing ownership of Shares (the “Certificates”), (i) a letter of transmittal in the form attached hereto as Annex A, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the applicable portion of the Payment Fund. Upon surrender of a Certificate for cancellation to the Paying Agenthas lost such Certificate, together with an indemnity agreement providing for indemnification of the Company, Parent and Surviving Corporation for any loss, damage or other expense resulting from a third party having a claim to such letter Certificate or the shares of transmittal, duly completed and executedstock underlying such Certificate ("Affidavit"), the holder of such Certificate will or Affidavit shall be entitled to receive in exchange therefor the amount of cash equal to the Common Price Per Share or the Preferred Price Per Share, as applicable, for each share of the Shares previously Company Common Stock represented by such Certificate (in each case, or subject to deduction for any required withholding Tax)the Affidavit, as the case may be, the portion of the Adjusted Merger Consideration indicated on the Payment Schedule, and such Certificate shall forthwith be canceled (if a Certificate is presented) and the records of the Company shall be modified accordingly upon receipt by the holder of such Certificate so surrendered will immediately thereafter or Affidavit, as the case may be, of the indicated portion of the Initial Merger Consideration. Such surrender of Certificates and Affidavits to Parent shall be cancelledmade at Closing in exchange for the appropriate portion of the Initial Merger Consideration. No interest shall will be paid or shall accrue accrued on any cash portion of the Adjusted Merger Consideration payable upon the surrender of any Certificate. In the event that the Merger Consideration such Certificates or Affidavits.
(c) If payment is to be paid made to a Person person other than the Person person in whose name any the Certificate surrendered in exchange therefor is registered, it shall be a condition of payment of the relevant portion of the Adjusted Merger Consideration that the Certificate so surrendered shall be properly endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name of the record holder appears on such Certificate, with signature guaranteed, and is otherwise in proper form for transfer, that the signatures on such Certificate or any related stock power shall be properly guaranteed and that the Person requesting such payment shall pay any transfer or other Taxes taxes required by reason law as a result of such payment to a Person other than the registered record holder of such the Certificate surrendered, or shall establish to the Parent's satisfaction of the Surviving Corporation that such Taxes have tax has been paid or are is not applicable. Until surrendered as contemplated by this Section 3.04, each Certificate shall be deemed at any time from and after the Effective Time to represent only the right to receive upon such surrender or transfer the Merger Consideration pursuant to Section 3.01 payable in respect of Shares theretofore represented by such Certificate, without any interest thereon. If any holder of Shares is unable to surrender such holder’s Certificates because such Certificates have been lost, mutilated or destroyed, such holder shall deliver in lieu thereof an affidavit in form and substance reasonably satisfactory to the Surviving Corporation, and, if reasonably required by the Paying Agent or the Surviving Corporation, post a bond in such amount as may be directed by the Paying Agent or the Surviving Corporation, as applicable, as indemnity against any claim that may be made in respect of such Certificate.
(c) At least three Business Days prior to the Effective Time, the Company shall provide to Parent a list of all holders of Options for which payment is to be made promptly after the Effective Time pursuant to Section 3.02. Promptly after the Effective Time and in any event within three Business Days thereof, Parent will cause the Surviving Corporation to pay to each such Option Holder the amount of cash equal to the excess of the Common Price Per Share over the applicable per share exercise price for each Share subject to such Option (without interest, and subject to deduction for any required withholding Tax).
(d) After the Effective Time Date, there will shall be no further registration transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock, which are outstanding at the Effective Date. If, after the Effective Date, Certificates are presented to the Surviving Corporation for transfer, they shall be canceled and there shall be issued to the transferee in exchange for each share of Company Common Stock the portion of the Adjusted Merger Consideration indicated on the Payment Schedule.
(ie) The consideration payable upon the surrender for exchange of Certificates in accordance with the terms of this Section I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock theretofore represented by such Certificates, and there shall be no further registration of transfers on the stock transfer books of Shares or (ii) the exercise Surviving Corporation of Options that the shares of Company Common Stock which were outstanding immediately prior to the Effective Time.
(e) Any portion of the Payment Fund that remains undistributed to the Shareholders six months Date. If, after the Effective Time will be delivered Date, Certificates are presented to the Surviving CorporationCorporation for any reason, upon demand, they shall be canceled and any Shareholder that has not previously complied with this Section 3.04 will thereafter look only to the Surviving Corporation, as general creditors thereof, for payment of such Shareholder’s claim for the Merger Consideration, without interest.
(f) None of Parent, the Company, the Surviving Corporation or the Paying Agent, nor any of their respective officers, directors, employees, agents or counsel, will be liable to any Person in respect of any Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(g) Notwithstanding anything to the contrary contained in this Section 3.04, Parent will use commercially reasonable efforts to cause the Paying Agent to pay immediately following the Effective Time, to each Shareholder by check or wire transfer of immediately available funds, the portion of the Payment Fund (less any applicable withholding Taxes) payable to such Shareholder, if such Shareholder has delivered to the Paying Agent properly executed letters of transmittal (in the form required by this Section 3.04), wire transfer instructions and the Certificates evidencing such Shares of such Shareholder, a reasonable time prior to the Effective Time. Promptly following the Effective Time, Parent shall deposit with the Escrow Agent the Holdback Amount. No later than five Business Days prior to the anticipated date of the Closing, Parent will deliver to the Company a sufficient number of copies of (i) an acceptable form of letter of transmittal so as to permit each Shareholder to exercise his, her or its right to payment immediately after the Effective Time exchanged as provided in this Section 3.04(g), and (ii) any documents required by Parent to be executed by Option Holders so as to permit each Option Holder to receive the payment promptly after the Effective Time as provided inI. SECTION II.
Appears in 1 contract
Surrender of Shares; Payment of Merger Consideration. (a) Prior At the Closing, each Stockholder shall surrender to Parent a certificate or certificates representing the issued and outstanding shares of Company Common Stock held by such Stockholder duly endorsed to Parent in blank or together with separate stock transfer powers duly endorsed by such Stockholder for surrender of such shares of Company Common Stock to Parent pursuant to the Effective Time, Parent will select Merger and having the signature of such Stockholder on such stock transfer power guaranteed by a national bank or trust company in the United States, reasonably acceptable to the Company, to act member firm of a registered national securities exchange or with such other guarantee as paying agent (the “Paying Agent”) for the payment of the applicable Merger Consideration due hereunder to the Shareholders upon surrender of the Certificates formerly representing Shares. Prior to the Effective Time, Parent shall pay to the Paying Agent in cash the aggregate amount of the Closing Net Consideration, less the Closing Option Amount (the “Payment Fund”). The Payment Fund will not may be used for any purpose except as expressly provided in this Agreement. The Paying Agent will invest the Payment Fund as directed required by Parent on a daily basis, provided such investments shall be limited to direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, commercial paper rated A-1 or P-1 by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Rating Group, respectively, or certificates of deposit issued by a commercial bank having at least $25 billion in assets. No investment income or gain or loss thereon shall affect the amounts payable to the holders of Shares. Any interest and other income or gain resulting from such investments shall not be part of the Payment Fund, and shall be the sole and exclusive property of Parent, payable to Parent upon its request's transfer agent.
(b) Promptly after At the Effective Time Closing, and in any event within three Business Days thereof, the Surviving Corporation or Parent will cause the Paying Agent to mail to each holder of record upon surrender of one or more certificates ertificates representing ownership of Shares (the “Certificates”Company Common Stock in accordance with Section 2.10(a), (i) a letter of transmittal in the form attached hereto as Annex A, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the applicable portion of the Payment Fund. Upon surrender of a Certificate for cancellation Parent shall deliver to the Paying Agent, together relevant Stockholder a certificate evidencing such Stockholders' Stockholder Percentage. Each certificate delivered by Parent in accordance with such letter of transmittal, duly completed and executed, the holder of such Certificate will be entitled to receive in exchange therefor the amount of cash equal to the Common Price Per Share or the Preferred Price Per Share, as applicable, for each of the Shares previously represented by such Certificate (in each case, subject to deduction for any required withholding Tax), and the Certificate so surrendered will immediately thereafter be cancelled. No interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. In the event that the Merger Consideration is to be paid to a Person other than the Person in whose name any Certificate is registered, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer, that the signatures on such Certificate or any related stock power shall be properly guaranteed and that the Person requesting such payment shall pay any transfer or other Taxes required by reason of such payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of the Surviving Corporation that such Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 3.04, each Certificate 2.10(b) shall be deemed at any time from and after bear the Effective Time to represent only the right to receive upon such surrender or transfer the Merger Consideration pursuant to legend set forth in Section 3.01 payable in respect of Shares theretofore represented by such Certificate, without any interest thereon. If any holder of Shares is unable to surrender such holder’s Certificates because such Certificates have been lost, mutilated or destroyed, such holder shall deliver in lieu thereof an affidavit in form and substance reasonably satisfactory to the Surviving Corporation, and, if reasonably required by the Paying Agent or the Surviving Corporation, post a bond in such amount as may be directed by the Paying Agent or the Surviving Corporation, as applicable, as indemnity against any claim that may be made in respect of such Certificate7.10.
(c) At least three Business Days prior The Merger Consideration paid upon the surrender for exchange of certificates representing shares of Company Common Stock (other than Dissenting Shares or Treasury 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 Effective Time, the shares of Company shall provide to Parent a list of all holders of Options for which payment is to be made promptly after the Effective Time pursuant to Section 3.02. Promptly after the Effective Time and in any event within three Business Days thereof, Parent will cause the Surviving Corporation to pay to each Common Stock theretofore represented by such Option Holder the amount of cash equal to the excess of the Common Price Per Share over the applicable per share exercise price for each Share subject to such Option (without interest, and subject to deduction for any required withholding Tax)certificates.
(d) After Notwithstanding anything in this Article II to the Effective Time there will contrary, the issuance and delivery by Parent to R. Lxxx xx Two Hundred Thirty-Eight Thousand (238,000) shares of Parent Common Stock, to W. Lxxx xx One Hundred Sixty Thousand (160,000) shares of Parent Common Stock, S. Fxx xx Fifty Thousand (50,000) shares of Parent Common Stock, to B. Bxxxxxx Xxxty-Two Thousand (52,000) shares of Parent Common Stock (an aggregate of Five Hundred Thousand (500,000) shares of Parent Common Stock) that such Management Stockholders otherwise would be entitled to receive pursuant to Section 2.8(a) (the "CONTINGENT CONSIDERATION") shall be contingent upon the Company meeting or exceeding total revenue and EBITDA milestones, as reported on a GAAP basis applied consistently by Parent at specified milestone dates through June 30, 2002, all as further set forth in EXHIBIT E attached hereto. Provided the Company meets the performance milestones, the Contingent Consideration shall be issued in installments as set forth on EXHIBIT E attached hereto that correspond with each performance milestone within thirty (30) days of Parent's receipt and confirmation of financial statements and reasonable supporting documentation from the Company (the "CONTINGENT PAYMENT DATE") associated with such performance milestone. If the Company does not meet a specified performance milestone, then Parent shall have no further registration on obligation to issue and deliver the stock transfer books relevant portion of the Surviving Corporation of (i) transfers of Shares Contingent Consideration payable to each such Management Stockholder. If at any time or (ii) the exercise of Options that were outstanding immediately times prior to the Effective Time.
(e) Any portion of the Payment Fund that remains undistributed to the Shareholders six months after the Effective Time will be delivered to the Surviving Corporation, upon demand, and any Shareholder that has not previously complied with this Section 3.04 will thereafter look only to the Surviving Corporation, as general creditors thereof, for payment of such Shareholder’s claim for the Merger an installment of Contingent Consideration, without interest.
(f) None of Parent, the Company, the Surviving Corporation or the Paying Agent, nor any of their respective officers, directors, employees, agents or counsel, will be liable to any Person in respect of any Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(g) Notwithstanding anything to the contrary contained in this Section 3.04, Parent will use commercially reasonable efforts to cause the Paying Agent to pay immediately following the Effective Time, to each Shareholder by check or wire transfer of immediately available funds, the portion of the Payment Fund (less any applicable withholding Taxes) payable to such Shareholder, if such Shareholder has delivered to the Paying Agent properly executed letters of transmittal (in the form required by this Section 3.04), wire transfer instructions and the Certificates evidencing such Shares of such Shareholder, a reasonable time prior to the Effective Time. Promptly following the Effective Time, Parent shall deposit (a) declare a dividend or make a distribution with respect to Parent Common Stock in shares of Parent Common Stock, (b) subdivide or reclassify the Escrow Agent the Holdback Amount. No later than five Business Days prior to the anticipated date of the Closing, outstanding Parent will deliver to the Company a sufficient number of copies of (i) an acceptable form of letter of transmittal so as to permit each Shareholder to exercise his, her or its right to payment immediately after the Effective Time as provided in this Section 3.04(g), and (ii) any documents required by Parent to be executed by Option Holders so as to permit each Option Holder to receive the payment promptly after the Effective Time as provided inCommon
Appears in 1 contract
Surrender of Shares; Payment of Merger Consideration. (a) Prior to At the Effective TimeClosing, from the Initial Merger Consideration, Parent will select shall (i) deposit Four Hundred Fifty Thousand Dollars ($450,000.00) (the “Escrow Amount”) with a bank or trust company in the United States, reasonably acceptable to the Company, to act as paying mutually agreeable escrow agent (the “Paying Escrow Agent”), to be held and released by the Escrow Agent pursuant to the terms and conditions set forth in an escrow agreement which shall be substantially in the form of Exhibit C hereto (“Escrow Agreement”) for and (ii) if applicable, deposit the payment Remediation Escrow with the Remediation Escrow Agent pursuant to Section 7.22. The remainder of the applicable Initial Merger Consideration due hereunder shall be delivered to the Shareholders upon surrender of pro rata in accordance with subparagraph (b) hereafter. The foregoing payments shall be made in accordance with a schedule to be provided by the Certificates formerly representing Shares. Prior Company and certified by the President and Controller at least ten (10) days prior to the Effective Time, Parent shall pay to the Paying Agent in cash the aggregate amount of the Closing Net Consideration, less the Closing Option Amount Date (the “Payment FundSchedule”). The Payment Fund will not be used for any purpose except as expressly provided in this Agreement. The Paying Agent will invest the Payment Fund as directed by Parent on a daily basis, provided such investments shall be limited to direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, commercial paper rated A-1 or P-1 by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Rating Group, respectively, or certificates of deposit issued by a commercial bank having at least $25 billion in assets. No investment income or gain or loss thereon shall affect the amounts payable to the holders of Shares. Any interest and other income or gain resulting from such investments shall not be part of the Payment Fund, and shall be the sole and exclusive property of Parent, payable to Parent upon its request.
(b) Promptly after Upon surrender to Parent of a properly endorsed Company Common Stock certificate representing each of the Effective Time and in any event within three Business Days thereofshares of Company Common Stock (each, a “Certificate”) or an affidavit of loss stating that the Surviving Corporation or Parent will cause the Paying Agent to mail to each holder of record of one or more certificates representing ownership of Shares (the “Certificates”), (i) a letter of transmittal in the form attached hereto as Annex A, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the applicable portion of the Payment Fund. Upon surrender of a Certificate for cancellation to the Paying Agenthas lost such Certificate, together with an indemnity agreement providing for indemnification of the Company, Parent and Surviving Corporation for any loss, damage or other expense resulting from a third party having a claim to such letter Certificate or the shares of transmittal, duly completed and executedstock underlying such Certificate (“Affidavit”), the holder of such Certificate will or Affidavit shall be entitled to receive in exchange therefor the amount of cash equal to the Common Price Per Share or the Preferred Price Per Share, as applicable, for each share of the Shares previously Company Common Stock represented by such Certificate (in each case, or subject to deduction for any required withholding Tax)the Affidavit, as the case may be, the portion of the Adjusted Merger Consideration indicated on the Payment Schedule, and such Certificate shall forthwith be canceled (if a Certificate is presented) and the records of the Company shall be modified accordingly upon receipt by the holder of such Certificate so surrendered will immediately thereafter or Affidavit, as the case may be, of the indicated portion of the Initial Merger Consideration. Such surrender of Certificates and Affidavits to Parent shall be cancelledmade at Closing in exchange for the appropriate portion of the Initial Merger Consideration. No interest shall will be paid or shall accrue accrued on any cash portion of the Adjusted Merger Consideration payable upon the surrender of any Certificate. In the event that the Merger Consideration such Certificates or Affidavits.
(c) If payment is to be paid made to a Person person other than the Person person in whose name any the Certificate surrendered in exchange therefor is registered, it shall be a condition of payment of the relevant portion of the Adjusted Merger Consideration that the Certificate so surrendered shall be properly endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name of the record holder appears on such Certificate, with signature guaranteed, and is otherwise in proper form for transfer, that the signatures on such Certificate or any related stock power shall be properly guaranteed and that the Person requesting such payment shall pay any transfer or other Taxes taxes required by reason law as a result of such payment to a Person other than the registered record holder of such the Certificate surrendered, or shall establish to the Parent’s satisfaction of the Surviving Corporation that such Taxes have tax has been paid or are is not applicable. Until surrendered as contemplated by this Section 3.04, each Certificate shall be deemed at any time from and after the Effective Time to represent only the right to receive upon such surrender or transfer the Merger Consideration pursuant to Section 3.01 payable in respect of Shares theretofore represented by such Certificate, without any interest thereon. If any holder of Shares is unable to surrender such holder’s Certificates because such Certificates have been lost, mutilated or destroyed, such holder shall deliver in lieu thereof an affidavit in form and substance reasonably satisfactory to the Surviving Corporation, and, if reasonably required by the Paying Agent or the Surviving Corporation, post a bond in such amount as may be directed by the Paying Agent or the Surviving Corporation, as applicable, as indemnity against any claim that may be made in respect of such Certificate.
(c) At least three Business Days prior to the Effective Time, the Company shall provide to Parent a list of all holders of Options for which payment is to be made promptly after the Effective Time pursuant to Section 3.02. Promptly after the Effective Time and in any event within three Business Days thereof, Parent will cause the Surviving Corporation to pay to each such Option Holder the amount of cash equal to the excess of the Common Price Per Share over the applicable per share exercise price for each Share subject to such Option (without interest, and subject to deduction for any required withholding Tax).
(d) After the Effective Time Date, there will shall be no further registration transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock, which are outstanding at the Effective Date. If, after the Effective Date, Certificates are presented to the Surviving Corporation for transfer, they shall be canceled and there shall be issued to the transferee in exchange for each share of Company Common Stock the portion of the Adjusted Merger Consideration indicated on the Payment Schedule.
(ie) The consideration payable upon the surrender for exchange of Certificates in accordance with the terms of this Section I shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock theretofore represented by such Certificates, and there shall be no further registration of transfers on the stock transfer books of Shares or (ii) the exercise Surviving Corporation of Options that the shares of Company Common Stock which were outstanding immediately prior to the Effective Time.
(e) Any portion of the Payment Fund that remains undistributed to the Shareholders six months Date. If, after the Effective Time will be delivered Date, Certificates are presented to the Surviving CorporationCorporation for any reason, upon demand, they shall be canceled and any Shareholder that has not previously complied with this Section 3.04 will thereafter look only to the Surviving Corporation, as general creditors thereof, for payment of such Shareholder’s claim for the Merger Consideration, without interest.
(f) None of Parent, the Company, the Surviving Corporation or the Paying Agent, nor any of their respective officers, directors, employees, agents or counsel, will be liable to any Person in respect of any Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(g) Notwithstanding anything to the contrary contained in this Section 3.04, Parent will use commercially reasonable efforts to cause the Paying Agent to pay immediately following the Effective Time, to each Shareholder by check or wire transfer of immediately available funds, the portion of the Payment Fund (less any applicable withholding Taxes) payable to such Shareholder, if such Shareholder has delivered to the Paying Agent properly executed letters of transmittal (in the form required by this Section 3.04), wire transfer instructions and the Certificates evidencing such Shares of such Shareholder, a reasonable time prior to the Effective Time. Promptly following the Effective Time, Parent shall deposit with the Escrow Agent the Holdback Amount. No later than five Business Days prior to the anticipated date of the Closing, Parent will deliver to the Company a sufficient number of copies of (i) an acceptable form of letter of transmittal so as to permit each Shareholder to exercise his, her or its right to payment immediately after the Effective Time exchanged as provided in this Section 3.04(g), and (ii) any documents required by Parent to be executed by Option Holders so as to permit each Option Holder to receive the payment promptly after the Effective Time as provided inI.
Appears in 1 contract
