Termination of Exchange Fund Any portion of the Exchange Fund that remains undistributed to the holders of Company Common Stock for six months after the Effective Time shall be delivered to Parent, upon demand, and any holder of Company Common Stock who has not theretofore complied with this Article II shall thereafter look only to Parent for payment of its claim for Merger Consideration.
Investment of Exchange Fund The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by Parent, on a daily basis. Any interest and other income resulting from such investments shall be paid to Parent.
Distribution of Exchange Fund to Parent Any portion of the Exchange Fund that remains undistributed to the holders of the Certificates or Uncertificated Shares on the date that is one year after the Effective Time will be delivered to Parent upon demand, and any holders of shares of Company Common Stock that were issued and outstanding immediately prior to the Merger who have not theretofore surrendered or transferred their Certificates or Uncertificated Shares representing such shares of Company Common Stock for exchange pursuant to this Section 2.9 will thereafter look for payment of the Per Share Price payable in respect of the shares of Company Common Stock represented by such Certificates or Uncertificated Shares solely to Parent (subject to abandoned property, escheat or similar Laws), solely as general creditors thereof, for any claim to the Per Share Price to which such holders may be entitled pursuant to Section 2.7.
Termination of Exchange Fund; No Liability At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Exchange Agent to deliver to it any funds (including any interest received with respect thereto) remaining in the Exchange Fund that have not been disbursed, or for which disbursement is pending subject only to the Exchange Agent’s routine administrative procedures, to holders of Certificates or Book-Entry Shares, and thereafter such holders shall be entitled to look only to Parent (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the Merger Consideration, including any amount payable in respect of Fractional Share Consideration in accordance with Section 2.5, and any dividends or other distributions on Parent Shares in accordance with Section 2.2(f), payable upon due surrender of their Certificates or Book-Entry Shares and compliance with the procedures in Section 2.2(b), without any interest thereon. Notwithstanding the foregoing, none of the Surviving Corporation, Parent or the Exchange Agent shall be liable to any holder of a Certificate or Book-Entry Share for any Merger Consideration or other amounts delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
Return of Exchange Fund Any portion of the Exchange Fund which remains undistributed to the former shareholders of the Company for six months after the Effective Time shall be delivered to Parent, upon demand of Parent, and any such former shareholders who have not theretofore complied with this Article I shall thereafter look only to Parent for 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. Neither Parent nor the Surviving Corporation shall be liable to any former holder of Company Common Stock for any such shares of Parent Common Stock, cash and dividends and distributions held in the Exchange Fund which is delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
Exchange Agent; Exchange Fund Prior to the Initial Company Merger Effective Time, Parent shall enter into an agreement with a commercial bank, trust company or transfer agent that is mutually acceptable to the Company and Parent to act as agent for the holders of Eligible Shares in connection with the Initial Company Merger and the holders of Eligible Heat OpCo Units in connection with the OpCo Merger (the “Exchange Agent”) and to receive the Merger Consideration to which such holders shall become entitled pursuant to this Article III. Prior to the Initial Company Merger Effective Time, Parent and Pacers OpCo shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the holders of Eligible Shares and holders of Eligible Heat OpCo Units, for distribution in accordance with this Article III through the Exchange Agent, the Merger Consideration in respect of Eligible Shares and Eligible Heat OpCo Units pursuant to Section 3.1 and Section 3.3, respectively. In addition, on the Closing Date, Parent and Pacers OpCo shall deposit, or cause to be deposited, with the Exchange Agent, from time to time as needed, cash sufficient to pay any Post-Effective Time Distributions and to make payments in lieu of fractional Pacers OpCo Units pursuant to Section 3.5(h). The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued in exchange for Eligible Shares or Eligible Heat OpCo Units, as applicable, pursuant to this Agreement out of the Exchange Fund. Except as contemplated by this Section 3.5(a), Section 3.5(g) and Section 3.5(h), the Exchange Fund shall not be used for any other purpose. Any cash, shares of Parent Common Stock and Pacers OpCo Units deposited with the Exchange Agent (including as payment for fractional shares or units in accordance with Section 3.5(h) and any Post-Effective Time Distributions) shall hereinafter be referred to as the “Exchange Fund.” Parent or the Surviving Company shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of Eligible Shares and Eligible Heat OpCo Units pursuant to this Agreement. The cash portion of the Exchange Fund may be invested by the Exchange Agent as reasonably directed by Xxxxxx. To the extent, for any reason, the amount in the Exchange Fund is below that required to make prompt payment of the aggregate cash payments contemplated by this Article III, Parent or Pacers OpCo shall promptly replace, restore or supplement (or cause to be replaced, restored or supplemented) the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Exchange Agent to make the payment of the aggregate cash payments contemplated by this Article III. Any interest or other income resulting from investment of the cash portion of the Exchange Fund shall become part of the Exchange Fund, and any amounts in excess of the amounts payable hereunder shall, at the discretion of Parent, be promptly returned to Parent or the Surviving Company.
Correction of Shareholder Accounts In the case of a Material NAV Error, corrections are made by correcting or “reprocessing” shareholder transactions/accounts at the correct NAV. When the NAV is understated, investors purchasing shares receive too many shares, and redeeming shareholders are paid less redemption proceeds than that to which they are entitled. When the NAV is overstated, investors purchasing shares receive too few shares for the amount paid and redeeming shareholders are paid excess redemption proceeds. Thus, correction or reprocessing of shareholder accounts results in adjusting the number of shares purchased or sold to the number that should have been acquired or sold, based on the correct NAV and the amount paid. In the case of a full redemption at an 91 understated NAV, the redeeming shareholder would be reimbursed directly for the additional amount they would have received in the absence of the NAV Error (subject to the $10 per-account correction minimum). In the case of a full redemption at an overstated NAV, TRP would determine whether to pursue reclamation of the overpayment from the shareholder (for accounts above the $10 per-account correction minimum). If TRP elects not to pursue reclamation from the shareholder, the amount of the overpayment will be paid in to the fund by TRP. Additionally, any reasonable losses and out-of-pocket expenses incurred for correcting shareholder accounts will be paid by the party responsible for causing the error. When a fund corrects shareholder accounts (and restates its NAV), investors or beneficial owners who hold shares through an intermediary (such as banks, broker-dealers, and defined contribution plan recordkeepers) will be corrected in the same manner (i.e., shareholders invested through an intermediary’s omnibus account should be transacted at the fund’s restated/official NAV). Further, there may also be losses or benefits to shareholders if the shareholders exchanged all shares of a fund with a Material NAV Error into another fund (“New Fund”) during an Error Period. Should this occur, the amount of New Fund shares may also need to be corrected to reflect the correct share amount (e.g., if a shareholder exchanges all shares of a fund with an understated NAV into a New Fund, the shareholder will receive less proceeds and therefore less shares of the New Fund and the New Fund account also would be corrected). In certain circumstances, such as, for example, where the costs of determining and administering the adjustment to shareholder accounts are excessive in relation to the adjustment, TRP may determine to implement alternative corrective action subject to approval by the fund’s Audit Committee or Trust Company’s Board. In such cases, the incremental cost of any such alternative corrective action (in excess of the cost of correction otherwise in accordance with this policy) will be borne solely by TRP. To the extent an NAV Error is corrected by adjusting shareholder accounts/transactions at the correct NAV (i.e., the NAV is restated), the restated NAV becomes the official NAV and is used for all purposes, including shareholder account/transaction correction, performance computations, “as of” transactions, and financial reporting. The restated NAV is presented on shareholder statements, web postings, and in financial reporting. If an NAV Error does not result in an NAV restatement, the original NAV remains the official NAV used for shareholder transactions and performance computations.
Termination of the Exchange Fund Any portion of the Exchange Fund which remains undistributed to the holders of the Certificates for six months after the Effective Time shall be delivered to Parent, upon demand, and any holders of the Certificates who have not theretofore complied with this Article II shall thereafter look only to Parent for, and Parent shall remain liable for, payment of their claim for the Merger Consideration.
Appointment of Exchange Agent Prior to the Effective Time, Parent shall appoint a bank or trust company to act as exchange agent (the “Exchange Agent”), the identity and the terms of appointment of which shall be reasonably acceptable to the Company, for the payment of the Merger Consideration and shall enter into an agreement relating to the Exchange Agent’s responsibilities with respect thereto, in form and substance reasonably acceptable to the Company.
Creation of Escrow Account/Common Stock Account a. On or prior to the date of this Agreement the Escrow Agent shall establish an escrow account for the deposit of the Escrow Funds entitled as follows: eTotalSource, Inc./Cornell Capital Partners, LP. The Investor will wire funds to the account of the Escrow Agent as follows: Bank: Wachovia, N.A. of New Jersey Routing #: 031201467 Account #: 2020000659170 Name on Account: David Gonzalez Attorney Trust Accoxxx Xxxx xx Xxb-Account: eTotalSource, Inc./Cornell Capital Partners, LP Escrow account
